Inclusion and exclusion of citizens and non-citizens from electoral rolls within ECI remit: Supreme Court observes

The Supreme Court on Tuesday observed that the inclusion and exclusion of citizens and non-citizens from the electoral rolls falls within the remit of the Election Commission of India (ECI).

The Bench of Justices Surya Kant and Joymalya Bagchi also remarked that ECI was right in stating that an Aadhaar card is not conclusive proof of citizenship.

The Court also did not agree with the submission that the people in Bihar do not have the majority of documents sought by the ECI as proof during the Special Intensive Revision (SIR).

"This is a case of trust deficiency that's all," Justice Kant remarked during the hearing.

The Court was hearing a batch of petitions challenging the ECI’s June 24 directive ordering an SIR of electoral rolls ahead of the upcoming State assembly elections.

One of the petitioners, Association of Democratic Reforms (ADR), has argued that SIR can arbitrarily and without due process disenfranchise lakhs of citizens from electing their representatives, thereby disrupting free and fair elections and democracy in the country. 

On the other hand, the ECI has defended its June-24 directive, asserting that it has plenary powers under Article 324 of the Constitution and Section 21(3) of the Representation of the People Act, 1950 to conduct a revision of electoral rolls. 

It told the Court that the exercise was necessitated by factors such as urban migration, demographic changes and concerns raised about inaccuracies in the existing rolls, which had not undergone an intensive revision for nearly two decades.

On August 6, the Court was told that 65 lakh names were dropped from the draft Bihar electoral roll published on August 1.

The ECI in a response has assured the Court that no name will be struck off from Bihar’s draft electoral roll without prior notice, a hearing opportunity and a reasoned order from the competent authority.

It also said that the Representation of People Act, 1950 and the Registration of Electors Rules, 1960 do not require the ECI to publish the reasons for non-inclusion of anyone in the draft electoral rolls for any reason.

During the hearing today, the petitioners' counsel Senior Advocate Kapil Sibal highlighted a case where 12 alive people have been shown to be dead by the electoral authorities.

Senior Advocate Rakesh Dwivedi, representing the ECI, said that the roll published was only a draft and that such a large exercise is bound to have errors. At this, the Court said,

"We have to ask you how many are identified as dead persons... your authorities must have done some work."

Senior Advocate Gopal Sankaranarayanan, also appearing for the petitioners, said that the SIR had already resulted in mass exclusion. However, the Court said,

"Mass exclusion will depend on facts and figures."

The Court then dealt with the documents included in the list for showcasing proof of identity during the SIR. Sibal argued that most of the enlisted documents are not available to people in Bihar. However, Justice Kant called it a sweeping argument and pointed to various documents that would be available to people.

"But something will be needed to see whether they are resident or not. There are family register, pension cards etc...very sweeping argument to say that people do not have these documents," the Court said.

Sibal then submitted that the electoral authorities do not even accept Aadhaar and ration cards.

"Once I give Aadhaar, I prove my residence...but then the burden lies on the person saying that the document is not correct," he added.

The Court also looked into the number of people excluded in the SIR. Sibal questioned the level of inquiry done to exclude the voters, arguing that even those included in the 2025 summary roll have been excluded in the SIR. At this, Justice Bagchi said,

"This inclusion in summary revision roll does not give you a carte blanche inclusion into the intensive revision roll."

Justice Kant also remarked that ECI was correct in saying that Aadhaar can't be accepted as a conclusive proof of citizenship.

"It has to be verified. See Section 9 of Aadhaar Act," the Court said.

Senior Advocate Abhishek Manu Singhvi argued that there is a presumption of citizenship and highlighted the short time period within which the entire process is taking place just ahead of the elections. He further submitted that crores of people cannot be declared invalid on the basis of presumption.

"If they do so, we will adjudicate the same...Are we going to explain everyone that if we find something suspicious can't we include all of them in 2025 list...into the roll?" Justice Kant remarked.

Singhvi further submitted that the Election Commission was never intended to be the policeman of citizenship.

However, Justice Kant remarked that the inclusion and exclusion of citizens and non-citizens from the rolls is within the ECI's remit. On this, Singhvi said,

"Yes I can be stopped till I apply and get citizenship but if I am on the roll already..."

He added that the excluded voters have already voted in 5-6 elections.

"What is happening here is de facto deletion. Non-inclusion is the clever word being used here," Singhvi said.

Meanwhile, Advocate Prashant Bhushan questioned the decision to make draft roll non-searchable.

"On August 4, the draft roll was searchable. After August 6, they have removed it and now names cannot be searched. That was suspicious," he said.

He also said that Block Level Officers (BLOs) have rejected at least 10-12 per cent without any reasoning.

"Among the 7.24 crore people who filled up enumeration forms, BLO have written against each of them stating recommended and not recommended. We have lists from two districts from a whistleblower...Now there are at least 10-12 per cent are not recommended...and they are the ones who submitted the forms," he said.

At the end of hearing, psephologist Yogendra Yadav also addressed the Bench on the issue. He said that the SIR by design was leading to mass exclusion.

"Vast exclusion has already begun...exclusion is much more than 65 lakhs. This is not a failure of implementation of SIR, but because of the fact that wherever you implement SIR, the result will be the same," Yadav said.

Yadav also said that never in the history of the country have people been asked to submit their forms in revision exercise.

"If it was done in 2003, the other side should point it out," he added.

He further said that the SIR had not led to any additions. This was an exercise in intensive deletion, he claimed.

"What was special in 2003 was that SIR was done apart from the word "intensive" being used. This is the first exercise in the history of the country where revision has taken place with zero additions. Zero additions."

Yadav called the entire process "dreadful" and said that the SIR was the largest exercise of disenfranchisement.

"We also have confirmation that women have deleted more than men. 31 lakh women have been deleted...25 lakh men have been deleted," he added.

The psephologist also pointed to two people within the courtroom who were allegedly declared dead by the electoral authorities.

"The figure is bound to cross 1 crore. This is not an issue of revision. Please see them. These are declared as dead. They don't appear. But they are alive...see them," he said.

At the end of today's hearing, Justice Kant thanked Yadav for his assistance. The hearing will continue on Wednesday.