The Supreme Court on Thursday urged the Election Commission of India (ECI) to consider allowing Aadhaar, ration card and electoral photo identity card (EPIC card) as admissible documents to prove identity of voters in the special intensive revision (SIR) of electoral rolls being undertaken in Bihar ahead of the upcoming Assembly elections.
A Bench of Justices Sudhanshu Dhulia and Joymalya Bagchi refused to stay the SIR process but repeatedly asked the ECI how it could disallow Aadhaar as one of the means to prove identity.
Eventually, it did not pass any interim order staying the SIR process, but asked the ECI to give an explanation in case it chooses not to include Aadhaar, ration card and EPIC in the list of documents that may be given by voters to prove their identity.
"After going through the documents, ECI has pointed out that the list of documents for verification of voters include 11 documents and is not exhaustive. Thus, in our opinion, it would be in the interest if justice if Aadhaar card, EPIC card and Ration card be included. It is for the ECI to still decide whether it wants to take the documents or not. If it does not take the documents, (it has to) give reasons for the same and the same shall satisfy the petitioners. Meanwhile, petitioners are not pressing for an interim stay," the Court said in its order.
The Court was hearing a batch of petitions filed by opposition party leaders and some NGOs challenging the ECI's June 24 directive ordering a special intensive revision of the electoral rolls in Bihar.
The Court today noted that the timeline for the process is very short since State assembly elections in Bihar are due in November this year.
It proceeded to issue notice to ECI and sought its response to the petitions.
"The matter needs hearing. Let it be listed on July 28 before appropriate court. Let counter affidavit be filed (by ECI) within one week on or before July 21 and rejoinder before July 28," the Bench directed.
Pertinently, the Bench also proceeded to frame the following three questions to be considered by the Court in the matter:
"We are prima facie of the opinion that there are three questions:
1. Powers of ECI to conduct the process.
2. The procedure to exercise the powers and
3. The timeline which is very short and due in November and notification will come in advance."
During the hearing, the Court also opined that Aadhaar should be included within the list of documents permissible as identity proof.
"We feel since Aadhar has been taken as a solid proof for inclusion in electoral rolls as per Section 23, it should be included. Your (ECI's) enumeration list is all related to identity - matriculation certificate, etc.," Justice Bagchi remarked.
"This entire exercise is (to establish) identity only," Justice Dhulia weighed in.
"We are looking at entitlement from all aspects," replied Senior Advocate Rakesh Dwivedi on behalf of the ECI.
"So citizenship... " asked Justice Dhulia.
"Yes citizenship, age etc," Dwivedi responded.
"Yes, citizenship," Justice Dhulia exclaimed.
On the decision to not allow Aadhaar, the Court asked,
"Suppose I want a caste certificate. I show my Aadhaar card. I get a caste certificate based on that. So that is a document accepted, but not Aadhaar. So it is one of the basic document which is considered by so many, (but is not considered by you."
"I am injuncted to use Aadhaar (for proving) citizenship or domicile proof as per the the Act," Dwivedi said.
"Please know that Aadhaar Act cannot be read disregarding other laws. See Section 56. We have to read both the Acts together. As soon as draft roll is published, there is a possibility some names will be excluded," said Justice Bagchi, in turn.
The matter will be heard next on July 28.
Background
The ECI directive of June 24 requires voters not listed in the 2003 electoral roll to submit documents proving their citizenship. Those born after December 2004 must also furnish the citizenship documents of both parents, with additional requirements if a parent is a foreign national.
The petitioners before the Supreme Court have argued that these requirements are excessively onerous and would lead to the mass disenfranchisement of genuine voters, particularly in a State like Bihar where documentation is often inaccessible due to high poverty, illiteracy, and weak registration systems.
The Association for Democratic Reforms (ADR), one of the first petitioners, contended that the move violates Articles 14, 19, 21, 325 and 326 of the Constitution and contravenes provisions of the Representation of the People Act, 1950.
According to the petition, the order imposes fresh documentation requirements and shifts the burden of proof from the State to the citizen. It also raised concerns over the exclusion of widely held documents like Aadhaar and ration cards, stating that this would disproportionately affect the poor and marginalised voters, especially in rural Bihar.
Under the SIR guidelines, voters not included in the 2003 electoral roll are now required to submit documents proving their citizenship. For those born after December 2004, the directive mandates not only their own documents but also those of both parents. In cases where a parent is a foreign national, the order asks for their passport and visa at the time of the applicant’s birth.
According to ADR, these requirements are unrealistic in a State like Bihar where birth registration levels are historically low and many voters do not have access to official documents.
The petition noted that over three crore voters in Bihar may not be able to meet these criteria and could end up being removed from the rolls.
According to the petition, the ECI has not provided any reasons for ordering such a special revision.
Section 21(3) of the Representation of the People Act, 1950 permits special revisions only for recorded reasons. ADR alleged that the ECI’s order lacks such justification.
Similar petitions were also filed by several opposition leaders and political parties including Mahua Moitra, Manoj Jha, Yogendra Yadav, KC Venugopal, Supriya Sule, D Raja, the Dravida Munnetra Kazhagam, Harinder Malik, Arvind Sawant, Sarfraz Ahmed and Dipankar Bhattacharya.
The petitioners urged the Supreme Court to stay the ECI’s directive and prevent the exclusion of voters ahead of elections scheduled later this year.
Hearing today
Senior Advocate Gopal Sankaranarayanan, appearing for one of the petitioners, contended that the burden to prove citizenship on voters not present in the 2003 voters list is arbitrary.
"They say, if you are in 2003 rolls, you can avoid parents documents. Else others will have to prove citizenship. They have made exemptions for the arts, sports people, and that is completely arbitrary and discriminatory...This process has no basis under the law. It is arbitrary and discriminatory. The fact that they have put artificial line in 2003 is something which the law does not allow. Revision procedure is laid down in Representation of People Act," he said.
The Court remarked that the revision of voters' list is a mandate under the Constitution.
"What they are doing is mandate under the Constitution. You cannot say that they are doing something which is not a mandate under the Constitution. They have fixed a date of 2003 since an intensive exercise has been conducted. They have data for that. Why should they scratch their head again? ECI has a logic behind this," the Bench said.
The Court also noted that the petitioners were not challenging the powers of the ECI to carry out SIR but the manner in which the poll body was doing it.
"This intensive revision and summary revision is in rules. Tell us when is the Commission expected to carry this out when? Periodically or when ... You are not challenging the powers of ECI but the manner in which it is being conducted," the Bench said.
On the exclusion of Aadhaar as a valid identification proof, the Court asked the petitioner,
"The contention that Aadhaar has been considered a reliable ID under the principal Act and thus excluding this now is unlawful. This is what you are arguing?"
"If 7.5 crore voters are there now, how can they be removed en masse," asked Sankaranarayanan.
In Bihar, the final electoral roll was in existence in June itself, he added. Questions were also raised about exemptions given to certain categories of persons.
"ECI is including the judges, journalists, arts people (in exemptions) in this since they are already known. Let us not stretch this. Let us not get into the by lanes and let us be on the highway," said Justice Dhulia, on this aspect.
"Your main contention is the exclusion of Aadhaar from the batch of permitted documents," Justice Bagchi weighed in.
The Court then asked the Election Commission whether it is too late in the day to resort to the electoral list revision process, just before the polls.
"There is nothing wrong in having this intensive process so that non-citizens don't remain on rolls but it should be de hors this election which is coming up," said Justice Bagchi.
"Once electoral roll is finalised and notified and election is after that.. no court will touch that," Justice Dhulia weighed in.
The appreciation of evidence when it comes to citizenship has to be strict and must be by a quasi-judicial authority, the Court further opined.
"For citizenship, the process is about strict appreciation of evidence. There has to be quasi-judicial authority," Justice Dhulia remarked.
"But it needs that. ... " Senior Advocate Maninder Singh said on behalf of ECI.
"Then isn't this too late now?" the Bench asked.
"Let the cake bake first," said Senior Advocate Rakesh Dwivedi.
"One cake was made in January itself (preparation of electoral rolls)," the Bench responded.
Senior Advocate Kapil Sibal, appearing for the petitioners, said that the ECI does not have the power to carry out the exercise to determine who is a citizen and who is not.
"ECI has no power in this. Who are they to say we are citizens or not? They are people who are not registered as citizens and there are who are registered and can be deleted only in terms of Section 3. So the entire exercise is shocking. They say if you don't fill a form you cannot vote. How can this be allowed?" he asked.
He also said that the burden of proving that a person is not a citizen is on the ECI and that citizens need not prove anything.
"The burden is on them and not me. They have to have some material in their possession to say that I am not a citizen! Not on me," he argued.
"Is it not their mandate to see that qualified votes and unqualified does not vote?" the Bench asked, in turn.
"This is an exercise in citizenship. Disenfranchisement of one voter impacts democracy and the basic structure. So we are saying all 10 elections till now was based on wrong electoral data," Senior Advocate Abhishek Manu Singhvi said.
"We have to see whether statutory provision giving wide berth powers give room for this elbow joint act," the Bench said.
Singhvi maintained that the whole process is a sham to disenfranchise voters.
"The process cannot lead to disenfranchisement.. the words are final electoral roll. There was no whisper of SIR," he argued.
"One rule says verbal hearing is there in summary process also. They may have intensive process also," the Court said.
"It is all en masse where all are put in the suspended trishanku state. .. this is all a fudge," Singhvi replied.
The Bench said that citizenship is the main criteria which makes one eligible to be a voter.
However, Singhvi said that proving citizenship involves a totally different procedure.
He also flagged the issue of not accepting Aadhaar as valid identity proof to vote.
"Citizenship is totally under different procedure. Someone has to come and show that they are seeking it under a different process and produce documents... Then comes Aadhaar which was taken as a valid one.. upheld by nine judges and the entire country is going mad after Aadhaar and then a constitutional body says Aadhaar will not be taken," he submitted.
The Court said there are three issues involved:
"First, there is no question that the issue before the court goes to root of democracy and about right to vote; two, it is not just powers of ECI but the process adopted; the next issue is the timing," the Bench said.
"If ECI does not have the power to prepare and update the electoral roll then a different body has to be found. Especially notwithstanding Article 324. Superintendence, direction and control over the electoral roll is the first thing. You also cannot be a voter in two places," said Senior Advocate Rakesh Dwivedi on behalf of ECI.
"Yes, superintendence etc. is there. But what they are arguing is that it is not revision or, summary but something which is specially intensive etc," the Bench pointed out.
The ECI made it clear that its existence stems from voters.
"ECI has the direct relation with the voters. If voters are not there then we are non existent. Next we cannot discriminate on the basis of religion, caste etc. every person who is citizen and not less than 18 and not barred by law and not disqualified shall be entitled to be registered as a voter," Dwivedi submitted.
He also questioned the locus of the petitions, saying none of them are affected parties/ voters.
"Are the voters here? Only some people who write articles have come here. ADR was recently deprecated. I have serious objection to this," Dwivedi said.
However, the Court deprecated the argument.
"Are you serious about this?" Justice Dhulia demanded.
"I am," Dwivedi replied.
"This cannot be a serious objection. This cannot be your best point .. please move ahead," Justice Bagchi stated.
"Suppose I was a voter till Janūary 2025. Is it sure that my name is there in the updated list?" Justice Dhulia queried.
"Yes, provided you sign the pre filled form," Dwivedi responded.
"With such a big population being subjected to intensive review, is it possible to link this exercise with the ensuing elections?" the Court asked.
Dwivedi then said that the ECI should be allowed to complete the process.
"Let us complete the process.. and then take a call. We can be stopped anytime. Elections are in November. I am saying why stop me now.. you can stop me later," he contended.
The Court said that it is reluctant to interfere with ECI's functioning more often than not.
"We are most loathe to interfere with the Election Commission of India," the Bench stated.
Pertinently, the Court opined that Aadhaar should be taken as proof for inclusion in electoral rolls.
Justice Dhulia added that even he may not be able to produce the documents requested by the ECI within such a short deadline.
"If you ask me these documents, I myself cannot show you all these. Then with all your timelines. You are showing the practicality.. I am telling you the issues on the ground," Justice Dhulia said.
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