The Supreme Court is hearing a batch of petitions challenging the Election Commission of India’s June 24 directive for a Special Intensive Revision (SIR) of electoral rolls in Bihar.
A Bench of Justices Surya Kant and Joymalya Bagchi is hearing the matter.
The petitioners have raised concerns that the SIR process permits arbitrary deletion of voters without adequate safeguards, potentially disenfranchising lakhs of citizens and undermining free and fair elections.
The Election Commission has defended its directive, asserting that it is empowered to undertake such an exercise under Article 324 of the Constitution and Section 21(3) of the Representation of the People Act, 1950.
It has maintained that the revision was necessary in light of urban migration, demographic shifts, and long-standing concerns about the accuracy of existing rolls, which had not been intensively revised in nearly twenty years.
The Commission has further submitted that the SIR is crucial to ensure that only eligible citizens are included in the electoral rolls ahead of the upcoming Bihar Assembly elections.
One of the issues that the Court is considering has been the list of documents that may be accepted by the Election Commission to verify the identity of voters to retain their names in the electoral list.
On July 10, the top court had urged the Election Commission to consider Aadhaar, ration card and electoral photo identity card (EPIC card) as admissible documents for this verification exercise.
The Commission, however, later submitted an affidavit stating that neither Aadhaar cards nor ration cards can be treated as proof of eligibility to vote.
The petitioners have challenged the exclusion of these documents as absurd.
The petitioners include opposition leaders from various States, and organizations such as the Association for Democratic Reforms (ADR), the People's Union for Civil Liberties, and the National Federation for Indian Women.
More recently, the ADR filed an interim application urging the Court to direct the ECI to disclose details of 65 lakh names recently dropped from a Bihar electoral roll published on August 1 as part of the SIR.
The ECI responded by stating that there was no legal requirement for it to disclose such reasons for publish a separate list of excluded voters.
It, however, added that no name will be struck off from Bihar’s draft electoral roll without prior notice, an opportunity to be heard and a reasoned order from the competent authority.
During yesterday's hearing, the Court orally observed that the inclusion and exclusion of citizens and non-citizens from the electoral rolls falls within the remit of the ECI. It also remarked that ECI was right in stating that an Aadhaar card is not conclusive proof of citizenship.
Live updates from the hearing today feature here.
Hearing begins.
Senior Advocate Dr AM Singhvi: Please see the Lal Babu judgment which I was referring to.
Singhvi: Please see ECI affidavit in Jharkhand matter in 2024 when they were also conducting summary revision in Bihar.
Singhvi: There are no foreigner tribunals also. In Assam at least they can go there.
Justice Kant: Yes, they have to approach High Court etc. but yes, no civil court.
Court: They are expanding the number of documents (by which people can prove their citizenship so that they are allowed to vote)... We understand your argument on exclusionary aspect with respect to Aadhaar.. But expansion of documents.. is voter friendly. We follow your argument on Aadhaar. But it is now 11 instead of 7 items by which you can identify yourself as a citizen.
Singhvi: It is not simply an expansion.
Justice Bagchi: An argument was made by a senior counsel that see Rule 4 and see the enumeration form. Rule 4 only specifies a, b, documents, you are asking for x, y documents and can you make enumeration form (that is inconsistent with statute).. If enumeration form includes whatever is in the rule, will it be violation or a more inclusive (version of the firm)?
Justice Kant: If someone says, "all eleven documents are required," it is anti-voter. But what if they say, give any of the eleven?
Singhvi begins reply by stating exclusion of Aadhaar from ID documents is exclusionary.
Singhvi adds: I am answering point wise (referring to point wise list of documents ECI refers to for proving citizenship. Remember, Aadhaar is the one document, for last 15 years, has highest coverage. In Bihar - 50-60%, maybe more, but it is high. Water, electricity, gas tank bills...
Singhvi: Third, see the cumulative impact. Indian Passport has a coverage of less than 1-2 %... What is the nature of the document you want? The nature of the document is it is minimum coverage document. Number 4, all the other documents.. have between 0-3% coverage. This is not Bihar specific, although this case concerns Bihar... The remaining documents are land (related). If you do not have land, documents no. 5, 6, 7 are out. 1 and 2 doesn't exist, Passport is illusory. Residents' certificate does not exist in Bihar. And, I am digressing, see form 6. Form 6 only requires self-declaration.
Singhvi: They (ECI) are doing mix and match (in listing ID documents), one from here, one from there (but without any regard for how much coverage they have).
Singhvi makes reply to a Court's query on one of the documents (document number 2) listed by ECI as ID document.
Singhvi noted that ECI has said that "Number of persons holding such document cannot be ascertained."
Singhvi: Amazing, it is a document whose coverage he can't ascertain - who else should ascertain?
Court: Let us accept it like this, identify card or pension document or PPO is one of the documents.. If those covered have any other document except PPO, they can also be considered.
Singhvi: There is no expansion of choice.. vast majority of Bihar doesn't have one.
Singhvi: What is this urgency in July to come up with a half baked scheme, on ad hoc basis? If voter is excluded, it (is civil death).
Singhvi: There are rural areas, flood areas in Bihar...What is the point of making a nice list of 11 documents, when 2 or 3 do not even arise? ... Many States in India don't have document no.6. Bihar certainly doesn't.
Court notes that it is encouraging that 36 lakh persons reportedly hold passports in Bihar.
Singhvi says the numbers are skewed.
Justice Kant: Let us not project Bihar this way. In terms of All India services, maximum representation is from this State. Maximum to IAS , IPS, IFS is from there. Cannot happen if the younger population is not motivated.
Singhvi: No one is against revision of rolls, have it in December! Spend the whole year on it.
Singhvi: You are making a list right in the nose of the election.. You are putting eleven documents, you are trying to impress somebody with 11 documents.. 3 of the 11 documents, the box is empty without notice. Some are doubtful, some you don't know source, others are highly irrelevant. This impressive so called list of 11 is largely a pack of cards. Plus, you supplant the previous document. There is no overlap, it is supplantation. You supplant Aadhaar, water, electricity bills .. The impressive '11 in number' is actually hollow.
Singhvi: What you have done is a very clever sleight of hand.. everyone from (the last several years) are deemed for the time being to not be on the roll at all - you (voter) come and show that you are there. It is 180 degree turn (from earlier position) ... Are you going to do this nice adjudicatory process (of giving notice, hearing objections) in 2 months? It can't be done unless you short circuit natural justice principles
Singhvi refers to Form 6: This is for inclusion for first time in electoral roll. (On the other hand, in this case) we are talking about 4 crores already in electoral roll. Even when a person goes for becoming a member of the rolls, it is a self declaration only!
Court: This is for inclusion in electoral roll?
Singhvi: Yes, for inclusion for first time, it is only self declaration! Objection can happen.
Singhvi: (Under Bihar SIR) everyone after 2003 is presumptively treated as not on electoral rolls unless they show in the negative. This is a very serious thing. Public interest would be taken care if they do a 1 year exercise, after the elections ... (in earlier similar exercises) they had time, Today, they have done it in few months. Is there any sanctity? Is there one good reason why they can't do it afterwards (after the upcoming Bihar elections)?
Bench rises. Arguments to continue after afternoon break.
Hearing resumes.
Singhvi: It is admitted that 65 (voters) lakh are off the list, by this delightful word called 'non-inclusion'. It means, that for the month of July, we are asked to fill enumeration forms .. these 65 lakh are those ... (who) without any process, they are declared that because you are one of three categories, you are off the rolls.. That I the ECI declare, that x lakhs are dead, y lakhs are permanently shifted or absent, and finally 7 lakhs odd are already enrolled (elsewhere), that is duplication ... This is done by a procedure nowhere in the rules.. You give out a press note saying, all of you give enumeration forms....
Non-inclusion is a delightful word, which is nothing but deletion without following any process, rule, adjudication etc., Singhvi adds.
Singhvi: No one is challenging power of deletion, but do it by the process prescribed.
Singhvi refers to a document, reads: No suo motu deletion shall be done in an election year...
Singhvi: Same thing happened in 2004. Arunachal and Maharashtra was exempted because elections were around the corner.. This is the one time wonder when election commission is not following its own rules.
Singhvi recounts that Arunachal and Maharastra were rightly exempted from one such earlier exercise in 2004.
Singhvi: Rightly so, because you can't have a time squeeze or a tunnel squeeze for such an important activity.
Singhvi concludes.
Senior Advocate Gopal Sankaranarayanan makes submissions.
Sankaranarayanan: State of West Bengal has also received a notice for SIR on August 8 without consulting the State government at all. The elections are due next year. Not on that point now. I also appear for the ADR.
Sankaranarayanan: The enumeration form, etc. has no basis in the Constitution.. it is a figment of ECI imagination.. they need to amend the RPA to take my entitlement away
Sankaranarayanan: India prides itself for being the largest democracy and ECI can be so casual saying enumeration form is sent and send it with documents. Which law allows you to do this? Who allowed you? 65 Lakh people are ousted just like this?
Justice Bagchi: This is the first time exercise... They have to undo all electoral rolls.. but they have not done that .. they have set a milestone of 2003.. so they also presuppose the existence of an electoral roll so a counter could be why 2003 and not the January 2025 one.
Sankaranarayanan: Nothing from here allows you to put some marker .. and here, without conducting individual inquiries.. does the law allow you to embark on such an exercise
Sankaranarayanan: It's historic because exercise such as this has never been done.
Justice Kant: Then subsection becomes redundant.
Justice Bagchi: So you say take your argument to an absurdum.. take the constituencies into account..see you admit that Subsection 3 has an overriding effect over Subsection 2. Sr Adv Gopal S: Strong procedures are laid down to show this is how revisions would be carried out...
Justice Bagchi: Primary legislation gives a slight elbow space for some variations, like during man-made disasters, etc. Some variation can be there, but whether the variation is just or not will be tested against Rule 4(2). You harp on Article 326, and ECI will harp on Article 325. It is a fight between constitutional right vs constitutional entitlement.
Sankaranarayanan points to the Anoop Baranwal judgment
Sankaranarayanan: You have a constitutional right to be included in the electoral rolls unless you are disqualified. Justice Rastogi went a step further and likened it to a central constitutional right. If it's a conditional right, how do you take it away..
Sankaranarayanan: What we are seeking is three fold. When this matter came on July 10, the court said in interest of justice let Aadhaar be used.. ration card. Now they don't allow, and they say other supported documents are needed. This is even after court said. Even EPIC Card was not considered. Next, we are pressing stay of this excercise itself. Bengal will also benefit. You cannot take me off electoral roll just by giving a cut off date.. at inception it's dead
Justice Kant: So it can never be done anywhere? But voter list cannot be static.
Sankaranarayanan: Revisions can be there of course. You can revise.
SC: But there has to be revision.
Sankaranarayanan: Please stay this exercise once and for all.
Advocate Prashant Bhushan: Lal Babu Hussain pointed out that all evidence has to be considered. Now so far as... Now in Lal Babu Hussain's note, your lordship saw that though it was not styled as a intensive, special intensive revision, but because mass notices were given to 1.67 lakh people saying that we are questioning your citizenship, therefore you come and show your passport or your birth certificate, etc.
The court said you can't do that, you have to presume somebody was there, he was there legitimately. And therefore if you want to remove them, you have to give them a notice with reasons as to why you are suspecting their citizenship and then allow them to present any documents, not just these documents that you have prescribed. Not just documents, any evidence.
I would go so far as to say that a declaration, if a declaration is good enough to show my citizenship for a new voter, certainly that declaration is good enough to show my citizenship as I am an existing voter. That has to be the case. So therefore thereafter somebody challenges that and shows some evidence to show that I should not be considered to be a citizen, then certainly they can give me a notice with the reasons, etc. and go through that process. But not in the manner in which they are doing, just see what they are doing.
Bhushan: I can guarantee that there are not more than 25% people whose enumeration forms have been received are from those who have submitted even one document. Because we know for a fact that these enumeration forms were filled up by the booth level officers sitting in their offices. We have put it on record. We have put it on record. We have given videos that these officers were filling up the enumeration forms and signing them on behalf of the voters. That is why a large number of dead people have founded a collection of those things. Forms have not been filled by the dead but by the booth level officers
Bhushan: In the absence of documents what you do.. you only give an affidavit for assertion. Can you give notice to 30,000 people, hear and decide in 30 days? When you publish the final electoral roll there is no time.. thus a fair accompli is achieved.. by finalising the electoral roll in a completely arbitrary manner.
Bhushan: The draft roll was searchable as put on site. But now it's not. It was there on August 4. They removed the rolls just after a day of Rahul Gandhi's press conference on Karnataka elections. Just a day later. The list was removed where it could be searched.
Justice Kant: We have no knowledge of press conference.
Bhushan: We know.
Justice Bagchi: The minimum statutory requirement is form 5... Yes website publication was good but this is the minimum statutory requirement...
Advocate Prashant Bhushan: This shows a mala fide intent. The fact they have resorted to all this shows it.. why would the 65 lakhs ousted be not displayed...
Bhushan: The very minimal interim order we need - they should put out the list of this 65 lakhs (deleted from electoral roll). They should put out list of 7 crores with searchability function. And they should put out list of persons recommended and not recommended, so people know they have not been recommended. And the reasons for deletion.
Bhushan concludes.
Senior Advocate Shadan Farasat: We are against special intensive revision and not revision or intensive revisions... It is never been done (in this manner) and cannot be done... I'll begin with Justice Surya Kant's judgment (in case concerning Section 6A of Citizenship Act)... (Refers to a para in the earlier judgment) your Lordships were interpreting Article 326, in this para.
Farasat: What has happened in this matter, this draft has already excluded 65 lakh people. This draft roll has to have the existing roll. The existing roll has to be taken as draft roll, then you include or delete - you can do it as intensively - but beginning point can't be 65 lakh removed. My respectful submission is, 65 lakh people have been illegally removed.
Justice Kant: But we can't bring dead back..
Farasat: If they are dead, election commission can remove, but by the process under the rules.. (if this process has to go on) lordships have to direct, include (the names deleted already) and then the process can go on.
Farasat concludes.
Another counsel: Unfortunate part, large number deleted, and three ladies yesterday wanted to commit suicide in front of Calcutta High Court.
Court notes that West Bengal case is not today.
Court: It is very difficult to take individual claims.. We will go into the broad principles. Broad principles will be the same in Bihar, will almost be applicable to West Bengal.
Senior Advocate Prashanto Chandra Sen: When you are doing intensive revision, (concerned officer) will go house to house, will talk to people. Today, instead, for habitual residents, they have said give an enumeration form and we will decide on basis of that.
Sen: There is another aspect on migration... When there are such short timelines.. party workers come to aid and some have 50,000 volunteers whereas other has 16,000.. now how kosher will be that process.
Court: We expect that they will follow the guidelines, how will they not?
Sen: But what they say in their affidavit is that they will go by their enumeration forms ... Second, accountability. What is the accountability of BLO and volunteers? In a short span, this exercise (is being conducted)... There are homeless persons, how do you determine their residence. BLO has to make two visits. There are ad hoc numbers given for residence. If there are illegal colonies, municipal authorities number it as 0. That has to be verified-
Court: These are challenges, any administration will face. These are practical challenges. Someone will have to find a way out. This is not as if there is no solution.
Sen: In the circumstances of this, is it a reasonable exercise? We are not opposed to intensive revision, but is it a reasonable time?
Court wraps up hearing for the day; to continue tomorrow.
Justice Kant: We will try to start hearing by 11 am tomorrow. Between 11-11.15 am.