Checking Is Not Deciding: Justice Dhulia on Where the Election Commission's Power Stops

Checking Is Not Deciding: The Line Between a Voter List and a Citizenship Register Article 326

says elections are held on adult suffrage for every citizen aged 18 or more. Section 16 of the Representation of the People Act, 1950 bars a non-citizen from the electoral roll. The text therefore makes citizenship a condition of voting.

What the text does not say is who decides whether that condition is met and that silence is the whole of the dispute Justice Sudhanshu Dhulia addressed at the Indian Express Idea Exchange.

The Distinction Dhulia Draws

The rule as written. In Justice Dhulia's view, the Supreme Court has held in several judgments that citizenship is not the Election Commission's job. He also accepted the other half: a voter has to be a citizen. On his reading, the Commission may check eligibility while preparing a roll, but deciding whether a person is a citizen belongs elsewhere.

In the July 2025 hearing he had said that function lies with the Ministry of Home Affairs. The rule as practised. The Special Intensive Revision that began in Bihar in June 2025 has, in the questioner's words, turned into a citizenship exercise.

Justice Dhulia said the problem is the enormous conditions imposed on voters, not the aim of an accurate roll. The gap. Justice Dhulia argued that the burden of proving someone is not a citizen lies with whoever alleges it, whether the police, the CBI or another agency.

His example was a villager who never went to school and may not be in any village register: if the burden falls on him, he has nothing to show. When checking turns into demanding proof, a roll revision starts to function like a citizenship test.

Why Independence Is Part of the Same Question

A body asked to hold this line must itself be trusted. Article 324 lets the President appoint the CEC and ECs "subject to" a law of Parliament, but no such law was made for over 70 years. In Anoop Baranwal v. Union of India (2023), a Constitution Bench filled that silence: until Parliament legislated, the Prime Minister, the Leader of the Opposition and the Chief Justice would select.

Justice Dhulia described the judgment as almost unanimous and said its purpose was to keep appointments from being a Cabinet decision alone. The 2023 Act then replaced the Chief Justice with a Cabinet minister nominated by the Prime Minister.

This is where the 14 objections matter. According to the Indian Express investigation, the two Election Commissioners objected on record 14 times in 10 months to the CEC's steps. Justice Dhulia called it serious if decisions were being taken by the CEC alone, but cautioned that the other side has not been heard and the matter is sub judice.

For the exam, the insight is the chain linking these threads: Article 326 requires citizenship, the Constitution is silent on who decides it and the answer depends on how the Commission is composed and how it takes decisions.

Write about SIR, the burden of proof and the 2023 Act as one question, not three.