Multiple documents allowed in Bihar SIR voter friendly: SC

The Supreme Court lauds ECI's expanded citizenship proof list for Bihar elections, but critics warn it may disenfranchise genuine voters.

The Supreme Court on Wednesday observed that the Election Commission of India’s (ECI) decision to expand the list of acceptable documents for proof of citizenship under the special intensive revision (SIR) in Bihar seemed “voter-friendly” and gave electors more options to establish eligibility.

The court is seized of a bunch of petitions challenging the ECI’s June 24 directive ordering an SIR ahead of the upcoming Bihar assembly polls.(HT Photo)

A bench of justices Surya Kant and Joymalya Bagchi observed that asking for only one document could be restrictive, but allowing voters to submit any one of several options was more inclusive.

“If they ask for all 11 documents, it is anti-voter. But if any one document is asked for, then. They are expanding the number of documents…it is now 11 instead of 7 items by which you can identify yourself as a citizen,” it remarked.

The bench also pointed out that the list of documents is ordinarily prepared after taking feedback from several government departments to maximise coverage. “This is a battle between a constitutional entitlement and a constitutional right-- between ECI’s power of superintendence under Article 324 and the electors’ right to vote under Article 326,” said the bench.

The court is seized of a bunch of petitions challenging the ECI’s June 24 directive ordering an SIR ahead of the upcoming Bihar assembly polls. Petitioners, which include NGOs, political leaders and activists, have alleged that the process, if left unchecked, could disenfranchise lakhs of legitimate voters and undermine free and fair elections.

The discussion in the court on Wednesday centred on whether the SIR framework advances inclusion while remaining within the bounds of the law, and whether ECI has the statutory space to tailor procedures for a special revision distinct from an ordinary summary exercise.

Senior advocate Abhishek Manu Singhvi, representing TMC lawmaker Mahua Moitra and some others, argued that the list was not truly inclusive because most of the 11 documents had extremely low coverage in Bihar.

“Aadhaar is the one document with the highest coverage in the last 15 years—50–60%, maybe more. Water, electricity, gas bills are excluded. Indian passport coverage is less than 1–2%. All other documents have between 0–3% coverage. If you don’t have land, three of them are out. Residence certificates don’t exist in Bihar. This impressive list of 11 is nothing but a house of cards,” Singhvi said.

On the non-acceptance of Aadhaar, Singhvi said its exclusion would disproportionately impact genuine voters. To this, the bench replied that those excluded would have to approach the high court, unlike in Assam where Foreigners’ Tribunals exist. The court also urged not to “project Bihar” negatively, noting the state’s strong representation in national services.

Senior advocate Gopal Sankaranarayanan, appearing for Association for Democratic Reforms (ADR), contended that the SIR enumeration form had “no basis in law” and alleged that 65 lakh voters had been removed “just like this” without due process. He argued that removing voters required amending the Representation of the People Act (RPA), not issuing administrative directives.

Calling for a stay on the exercise, he said: “You cannot take me off the electoral roll just by giving a cut-off date. At inception, it’s dead.” The court, however, noted that voter lists “cannot be static” and periodic revisions were necessary.

Advocate Prashant Bhushan, also representing ADR, alleged that booth-level officers had filled enumeration forms themselves, sometimes for deceased persons, instead of collecting them from voters. He also questioned how such a large number of people could be served notices and have their cases decided within a month, calling it a “fait accompli” that would arbitrarily finalise the rolls.

Bhushan reiterated his claim that ECI removed the searchable draft rolls from its website after a press conference by Congress leader Rahul Gandhi on “bogus voters”. But the bench said it had “no knowledge” of any press conference.

On publication requirements, the court clarified that while online disclosure was welcome, the legal standard was defined under Rule 10 of the Registration of Electoral Rules, 1961.

Senior advocate Shadan Farasat, appearing for one of the petitioners, argued that the SIR process itself was unlawful and unprecedented. “The draft roll is meant for inclusion. If removal happens, then they have no recourse. These 65 lakh people being ousted is illegal,” he said.

During the hearing, the court observed that Section 21(3) of the Representation of the People Act, 1950 appeared to give ECI latitude to conduct a special revision “in such manner as it may think fit,” especially in exceptional situations, while the default regime remains the Registration of Electors Rules, 1960. It agreed to explore whether this “elbow room” allows limited additions, such as extra forms or document options, tailored to a special revision, without violating the statutory scheme.

The court will continue hearing the matter on Thursday.

Seeking dismissal of the petitions against SIR, ECI has defended its decision, citing demographic changes, urban migration, and the need to remove inaccuracies from rolls that have not undergone intensive revision for nearly two decades. It maintains that it has plenary powers under Article 324 of the Constitution and Section 21(3) of the Representation of the People Act, 1950 to carry out SIR.

In its latest affidavit filed on August 9, the Commission stressed that the 1950 Act and the 1960 Rules do not require it to prepare or publish a separate list of the nearly 65 lakh persons not included in the draft rolls, or to state the reasons for each non-inclusion. It clarified that exclusion from the draft does not amount to deletion from the electoral roll and assured the court that no name will be removed without prior notice, an opportunity to be heard, and a reasoned order by the competent authority.

The petitions by ADR and others challenge the ECI’s June 24 notification initiating SIR under Section 21(3) of the 1950 Act. The petitioners argue that the ECI’s demand for only 11 specified documents, such as birth or matriculation certificates, passport, domicile certificate, etc, as proof of citizenship lacks statutory basis. They further claim that this restrictive documentation requirement could disenfranchise a large number of legitimate voters, especially those from marginalised communities. They have also questioned whether ECI is empowered to conduct such a revision for verifying citizenship, arguing that this function rests with the Union government.

SIR has become a major political flashpoint ahead of the Bihar assembly elections scheduled for later this year. Opposition parties in the INDIA bloc have staged protests in Parliament and written to Lok Sabha Speaker Om Birla seeking a special discussion on what they call an “unprecedented” revision so close to state polls. Eight parties, including Congress, RJD, Samajwadi Party, DMK, Trinamool Congress and Shiv Sena (UBT), have warned that the exercise could be replicated nationwide.

On August 8, Union home minister Amit Shah, addressing a rally in Bihar’s Sitamarhi, launched a sharp attack on Opposition leader Rahul Gandhi and the INDIA bloc, accusing them of opposing the revision because “names of infiltrators” were being removed from the lists. “Infiltrators have no right to vote. Names of infiltrators must be removed from the voters’ lists. But the Rashtriya Janata Dal and the Congress are opposing SIR in Bihar because the names of infiltrators are being deleted,” Shah said.

While the government has accused the Opposition of politicising electoral reforms, the Opposition contends that the SIR’s timing, methodology and documentation requirements threaten the fundamental right to vote of genuine electors, particularly among the poor, migrants, and minorities.