The Election Commission of India (ECI) justifies the Special Intensive Revision (SIR) of electoral rolls on the ground that it bears a constitutional and statutory duty to maintain accurate electoral rolls as a precondition for free and fair elections.
The Commission contends that the last comprehensive revision was undertaken over two decades ago and that rapid urbanisation, demographic mobility and large-scale migration have substantially altered the composition of the electorate.
Cross-border infiltration has been invoked as a significant justification for the revision of rolls. The SIR exercise was challenged before the Supreme Court. Notably, neither did the ECI adduce empirical evidence substantiating most of these claims, nor did the Supreme Court require any evidentiary justification. Instead, the Commission's assertions were accepted prima facie while upholding the legal validity of the SIR exercise. Critics, therefore, argue that this unprecedented nationwide revision is proceeding without demonstrating any legal justification and an objectively verifiable or compelling necessity.
However, as on September 26, 2026, approximately 13.98 crore names have been deleted from the electoral rolls cumulatively in the Phase I, II and III of the SIR exercises across 12 States and Union Territories. This, despite that fact that the constitutional position is clear on this issue. Article 326 of the Constitution is very clear; it provides that every person shall be entitled to be registered as a voter at any such election.
When it comes to Representation of the People Act, 1950, Section 16 verbatim reproduce the wordings of the Article 326 of the Constitution. Section 62(1) of the Act, however, is important as it says that a person whose name is entered in the electoral roll of a constituency is entitled to vote, subject to the Act. Section 62(5) categorically says that merely because a person is prohibited from voting under that subsection, a person whose name is on the electoral roll does not cease to be an elector.
Interestingly, Right to Information (RTI) activist Anjali Bhardwaj said that she had filed an RTI application on July 28, 2025 to know whether it was the ECI who had taken the decision to conduct the SIR. Bhardwaj publicly stated that she had received a reply from the ECI's Principal Secretary in December 2025 indicating that the decision to conduct the SIR was not taken by the Commission. If Bhardwaj’s assertion is true, the question must be asked as to who actually had taken the decision of conducting the SIR. The issue raises a serious question not only about the independence of the ECI, but also whether the elections in Bihar, West Bengal, Kerala, Tamil Nadu and Orissa were held in a free and fair manner. The exercise has precipitated a nationwide constitutional and political controversy concerning both its procedural legitimacy and normative justification.
The principal argument for questioning the SIR exercise is that its unprecedented scale has generated widespread fear, suspicion and social anxiety owing to its grave legal, political and human rights implications. It is argued that the exercise has not only jeopardised the electoral rights of millions, but has also engendered apprehensions regarding the possible loss of citizenship and the consequent deprivation of citizenship-based legal entitlements. Many fear eventual statelessness, while others anticipate exclusion from public welfare schemes. These apprehensions are not merely speculative, but foreseeable consequences. Executive orders/circulars issued in Bihar and West Bengal have reportedly stipulated that individuals whose names do not appear on the electoral rolls would be disentitled to welfare benefits, including the Public Distribution System (PDS) and the Annapurna Yojana. Millions have failed to secure their names in the electoral rolls due to their inability to furnish documentary proof demanded by booth level officers (BLOs); even government-issued documents are being rejected.
No document issued by governmental authorities conclusively establishes an individual's citizenship. Even the Indian passport, which is issued following an extensive process of verification and traditionally regarded as the strongest documentary evidence of citizenship, is now treated merely as a "travel document". Consequently, the SIR exercise and the question of citizenship are inextricably intertwined, making an understanding of their relationship unavoidable to the present discourse.
Citizenship is intrinsically linked to the idea of nationality. Nationality provides an individual with a national identity and membership in the political community. Citizenship entitles individuals not only to the political right to vote, but also to a broad spectrum of citizenship-based constitutional, legal and socio-economic rights and entitlements. Conversely, the exercise of electoral rights and free and fair elections confer democratic legitimacy upon the government in power and reinforces the constitutional legitimacy of the State itself. Viewing through this conceptual lens, millions of individuals whose names have been deleted from the electoral rolls may encounter significant difficulties in establishing their nationality that underpins citizenship, thereby rendering their citizenship status vulnerable to official suspicion.
The massive scale of deletion thus raises profound constitutional, legal, political and human rights concerns. Critics claim that SIR is a euphemistic mechanism for indirectly scrutinising citizenship status; its consistent legal validation is, therefore, problematic. It has also been argued that the manner in which the ECI conducted the SIR and the Supreme Court's subsequent judicial validation of the exercise, raise serious questions concerning institutional neutrality, impartiality and procedural fairness.
The most formidable legal challenge to citizenship claims arises from the adverse evidentiary presumption embodied in Section 9 of Foreigners Act, 1946. Enacted in British India in 1946 under the framework of the Government of India Act, 1935, the provision creates an exception to the ordinary rule of evidence by placing the burden on the individual whose citizenship or nationality is questioned, rather than on the State, to establish that he/she is not a foreigner. The legislation was enacted by the colonial administration to address the exigencies of immigration control and administrative convenience in the aftermath of the Second World War; Section 9, therefore, was a war time provision. Its underlying colonial rationale also finds expression in Section 106 of the Indian Evidence Act, 1872, which embodies the evidentiary principle that: “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”
SIR principally entails the completion and submission of the enumeration form and the verification of entries in the electoral rolls. In legal terms, BLOs are not authorised to require existing voters to produce citizenship documents for determining the genuineness of their electoral status during house-to-house enumeration. In practice, however, the situation appears substantially different. The evidentiary burden embodied in Section 9 of Foreigners Act is, in effect, being applied during the SIR process. During the SIR exercise, BLOs have required certain individuals to establish their eligibility for inclusion in the electoral rolls by producing prescribed documentary evidence, including evidence relevant to their citizenship status. Many individuals, despite being duly enrolled in the electoral rolls, are unable to produce one or more documents demanded by BLOs for a variety of legitimate reasons. Their inability to furnish such documents frequently results in the deletion of names from the electoral rolls.
It is noteworthy that citizenship in India is governed by the Constitution, the Citizenship Act, 1955 and the Citizenship Rules, 2009. On the other hand, the determination of the eligibility and genuineness of electors is regulated by Articles 325 and 326 of the Constitution, together with Sections 16, 19, 22 and 23 of the Representation of the People Act, 1950 and the Registration of Electors Rules, 1960. The Foreigners Act, 1946 governs neither of these legal domains. The constitutional framework governing citizenship is premised upon an inclusive conception, with jus soli (citizenship by birth) constituting its foundational principle, supplemented by other constitutionally and statutorily prescribed modes of acquisition. By contrast, the Foreigners Act is fundamentally exclusionary rather than enabling in its normative orientation.
Further, neither the Constitution nor the Citizenship Act imposes a general evidentiary burden upon an individual to establish that he/she is not a foreigner; the legal presumption ordinarily operates in favour of citizenship. Paradoxically, however, the adverse presumption under Section 9 of the Foreigners Act is operative not only over the verification of electoral eligibility, but also over questions concerning citizenship governed by the Constitution and the Citizenship Act. Such a legal position arguably undermines the constitutional vision of inclusive citizenship and hence violates the rights to equality and to life and personal liberty guaranteed under Articles 14 and 21 of the Constitution.
Moreover, in Maneka Gandhi v. Union of India (1978), the Supreme Court authoritatively held that any State action affecting life or personal liberty must satisfy the constitutional requirements of fairness, reasonableness and non-arbitrariness. It is, therefore, clear that the automatic reversal of the burden of proof under Section 9 of the Foreigners Act is difficult to reconcile with these constitutional guarantees and the broader jurisprudence of fundamental rights.
The Foreigners Act, 1946 is unmistakably a colonial enactment. It was introduced by the British administration under a specific historical context to address the exceptional exigencies of the time as discussed above. Interestingly, the present BJP-led Union government has consistently expressed its commitment to decolonising India's legal system, resulting in the repeal or replacement of numerous colonial-era statutes over the past decade. Significantly, however, the Foreigners Act has remained largely untouched by this decolonisation project. On the contrary, exclusionary and coercive potential of the Act appears to have been reinforced through many administrative and legal measures. Here, it may be argued that the continuity to the Act's enduring utility is an instrument of State power. The Foreigners Act functions as a legally sanctioned mechanism for questioning or delegitimising the citizenship status of a vast population, particularly religious minorities, Dalits, Adivasis and political dissenters.
The constitutional validity of the Foreigners Act, 1946 has been challenged before the Supreme Court on several occasions. Although the Court has consistently upheld the Act, it has neither examined whether the exceptional historical circumstances that justified its enactment during the colonial period continue to exist in Independent India, nor has it evaluated the statute's constitutional legitimacy from the perspective of democratic principles and human rights. Instead, judicial reasoning has predominantly rested upon the statist conception of sovereignty, recognising the State's legitimate interest and plenary authority to regulate the entry, residence, movement and departure of foreigners. Within this jurisprudential framework, human rights considerations have found no space. This statist approach is reflected in decisions such as Hans Muller of Nuremberg v. Superintendent, Presidency Jail (1955), Sarbananda Sonowal v. Union of India (2005) and Sarbananda Sonowal (II) v. Union of India (2007).
Admittedly, while the State possesses both the constitutional authority and a legitimate interest in regulating the status of foreigners, it is important to say that such powers should be exercised in appropriate individual cases based on legally sustainable grounds. Their generalised and routine application through a nationwide exercise such as the SIR, with the potential of depriving millions of citizens of their constitutionally guaranteed rights, must, therefore, be criticised as an excessive and disproportionate exercise of State power.
While reaffirming the legal validity of the SIR exercise, the Supreme Court permitted the Election Commission to proceed with the revision of the electoral rolls. Significantly, however, the Court has thus far not provided any authoritative assurance that deletion of a person's name from the electoral roll neither extinguishes citizenship nor disentitles the individual from government welfare schemes. The absence of such judicial assurance has further reinforced uncertainty, apprehension and fear among the public. On July 17, 2026, the Bench orally observed that deletion from the electoral roll does not automatically result in the loss of citizenship. As a matter of constitutional practice, however, an oral observation lacks binding legal force and it therefore does not mean anything to the executive authorities in the absence of a written order.
In fact, many critical questions concerning proof of a ‘valid voter’ and citizenship arising from the SIR exercise can be reframed through a single, fundamental inquiry. A legal answer of this inquiry, I believe, will address the all-pervasive uncertainty and fear of losing citizenship. The question is: What special documents do the constitutional functionaries such as the President of India, the Prime Minister, the Chief Election Commissioner and the Supreme Court judges possess to establish their citizenship and status as valid voter? The question is constitutionally significant because Indian citizenship is a constitutional and statutory requirement under Article 326 for being a valid elector (voter) in India. Section 16(1)(a) of the Representation of People Act, 1950 disqualifies a person’s registration in an electoral roll if he/she is not a citizen of India. This implies that a person cannot be validly registered as an elector, or exercise the voting right in an Indian election, unless he or she is a citizen of India.
At the same time, it is also important to note that no legal provision creates an automatic presumption that incumbents of these public offices are citizens or valid electors. On the contrary, citizenship is an express threshold qualification for each of these constitutional offices. Article 58(1), for instance, stipulates that a candidate for the post of the President of India must be a ‘citizen of India’; corresponding requirements apply to the Prime Minister (Article 84), a Supreme Court judge [Article 124(3)], and the Chief Election Commissioner (Article 324). It is, therefore, reasonable to assume that the incumbents of these offices must have been subjected to administrative inquiry, scrutiny and verification of their citizenship status before assuming their respective offices.
Having regard to the adverse burden of proof imposed by Section 9 of the Foreigners Act, 1946, the millions of socially and economically vulnerable persons whose citizenship is indirectly being questioned euphemistically through the SIR have a legitimate right to know how these constitutional functionaries have discharged that burden of proof. What documents, precisely, satisfied the administrative authorities conducting the relevant inquiry, scrutiny and verification that each of these public functionaries is a citizen of India? From a strictly legal and constitutional standpoint, neither the Constitution nor any statute requires these functionaries to possess any special citizenship document, nor does any constitutional provision create an automatic presumption in their favour as stated above. Their citizenship is governed by the same substantive legal framework applicable to every other Indian citizen.
In this light, the fundamental question is: on what legal basis can a judicial or administrative authority question, directly or indirectly (through SIR or otherwise), the citizenship or depriving an ordinary person of his/her voter right, when they possess the same category of documentary evidence as those occupying the highest constitutional offices?
Vinod Kumar is a Professor of Law at National Law University Delhi (NLUD).
Disclaimer: The article has been written in personal capacity and has nothing to do with NLU Delhi.