ECI cannot conduct citizenship test; SIR amounts to indirect NRC: Petitioners to Supreme Court

The Special Intensive Revision (SIR) ordered by the Election Commission of India (ECI) across different states has raised concerns of an indirect National Register of Citizens (NRC) process without the approval of Parliament, petitioners told the Supreme Court on Tuesday.

The submission was made by Senior Advocate Abhishek Manu Singhvi before a Bench of Chief Justice of India (CJI) Surya Kant and Justice Joymalya Bagchi during the hearing of pleas challenging the legal validity of the SIR exercise across states.

Singhvi argued that the ECI has no power under Article 324 of Constitution of India to conduct a citizenship test by introducing arbitrary procedures in the guidelines for elections. The senior counsel said that the ECI had effectively created a parallel mechanism of citizenship determination through the electoral process.

"Determination of citizenship lies exclusively with the Central government under Sections 8 and 9 of the Citizenship Act or with the courts and Foreigners Tribunals. By requiring EROs to scrutinise citizenship documents, mark suspected non-citizens and report them to the Home Department, the Election Commission has acted ultra vires the Constitution and the Citizenship Act. It has effectively created a parallel mechanism of citizenship determination through the electoral process. This breaches statutory limits and raises concerns of indirect NRC without parliamentary sanction," he said.

Singhvi further said that the ECI was presumptively putting people on a "temporary citizenship list."

"That is my language, but it captures the effect. The original list becomes a presumptive temporary list. Second, I have to prove that I am a citizen. The burden is reversed. They file an objection against me and I am forced into an adjudication. This is very serious. The Election Commission has arrogated to itself a power it does not have. It has created a presumption. It has shifted the burden," he said.

The Court has been hearing a batch of petitions filed by opposition leaders and NGOs challenging the conduct of SIR of electoral rolls in various states.

The ECI had first directed the SIR for Bihar in June this year. Multiple petitions were filed before the Supreme Court challenging this exercise. Despite those challenges being sub-judice, the ECI on October 27 extended the SIR to other states and union territories including Tamil Nadu, West Bengal and Kerala.

Subsequently, the SIR exercises in Tamil Nadu and West Bengal were also challenged. The Supreme Court issued notice on those petitions on November 11.

The Kerala government also filed a plea to defer the SIR till after the local body elections in the State were over. The Communist Party of India (Marxist) [CPI(M)], the Communist Party of India (CPI) and Indian Union Muslim League leader PK Kunhalikutty also moved the Court, challenging the validity of the SIR process itself.

The Bihar SIR was meanwhile completed since the Supreme Court did not stay the process. During a hearing last month, the ECI's counsel accused political parties of unnecessarily engaging in fear-mongering about the SIR process.

Today's hearing

During the hearing today, Singhvi submitted that the ECI was required to provide constituency-wise reasons for ordering such exercise.

"Reasons under Section 21(3) [of Representation of People Act] are by nature individualised. They can never be one size fits all. That is the nucleus of my argument...The reasons must be relevant for that constituency. Whether it is one or many, reasons in a special revision cannot be generic...What is being done here over-stretches the statute," the senior counsel said.

He added that reasons can never be generic and even when they are common across constituencies, they must have a rational nexus.

"Here, even the generic reasons are the most generic of all - rapid urbanisation and frequent migration. Urbanisation has been ongoing for more than ten years," he contended.

Singhvi thus urged the Court to interpret the relevant Representation of the People Act provision in a strict sense.

"Unless Your Lordships treat Section 21(3) as a completely general provision, which the language does not allow, these reasons will not fit the statutory scheme. Frequent migration is equally vague. None of this can meet the statutory threshold. Your Lordships must interpret Section 21(3) in its proper place. Section 21(3) leads to Section 21(1). Section 21(1) requires the prescribed manner. The prescribed manner is Rule 25 of the 1960 Rules. Section 21(1) flows into Rule 25. If my interpretation of Section 21 read with Rule 25 is correct, their power is limited constituency wise," he argued.

He submitted that extraordinary circumstances can arise and that the Court was not inhibited in any manner.

"These current exercises are not special revisions. They are intensive revisions, not actual SRs. On 3A(1), the intensive process cannot be used everywhere simply because the authority considers it convenient. Discretion must remain within Section 21(3) and Rule 25. The jurisdiction cannot be expanded merely because certain areas appear to need intensive revision," he added.

With regard to the special revisions, he referred to the example of Thakurdwara in Uttar Pradesh, where he said 15,000 persons of a particular community were deleted and 21,000 of another community were added.

"They did this very exercise. They enquired and they passed an order...Never before has this classification of an entire state by state been attempted. Thakurdwara is an example of individualisation. It is an example of application of mind, reasons, causal nexus...The inquiry did not show any irregularities in some parts. The inquiry revealed a shocking state of affairs in others. More than fifteen thousand names were found wrongly deleted. This is an individualised example. It is an interesting contrast. On one side, you have an individualised example like Thakurdwara. On the other hand, you have mass deletion and mass addition without following procedure," he added.

In a sarcastic submission aimed at the ECI's actions, Singhvi said,

"Nobody in 75 years has thought of this. With great respect, I must pay a left-handed compliment to the Election Commission. This is truly a new innovation by the EC...Nobody has ever thought of this...The point is the meaning. You have a problem. You are serious. You require power. But you are using a power which does not exist or is intended for something else or something totally different."

Advocate Vrinda Grover, also appearing for the petitioners, submitted that the declaration form for the process is designed to exclude voters.

"Woman who were on the rolls in January 2025 as per the summary revision of ECI are no longer on the draft roll. This happened in last 6 months and the reason can no longer be anything else than SIR. There is a drop of 4 lakh to 79,0000. There are reasons in lived reality which affect women differently," Grover said.

Grover contended that the SIR was an attempt by ECI to arrogate itself powers which were not contemplated in law, adding that the electoral body was entering into the legislative domain.

Advocate Prashant Bhushan, who also appears on the petitioners' side, submitted that the present SIR was completely different from the 2002 SIR.

"Today it is a de novo preparation. Why is this hurry? Why is it leading to a situation where 30 BLOs have committed suicide?" he asked.

Bhushan also referred to the alleged public perception about ECI.

"We cannot shut our eyes to the fact that a lot of people are viewing the Election Commission as a despot."

However, CJI Kant advised against such submissions.

"Let us not make sweeping statements which are not there in pleadings."

Continuing with his submissions, Bhushan said that online publication Reporters Collective had published a report stating that more than five lakh duplicate voters still exist after the SIR in Bihar.

The hearing will resume on December 4.

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