The Supreme Court on Tuesday (August 12) heard the arguments of the petitioners in the pleas challenging Election Commission's Special Intensive Revision (SIR) of Bihar's electoral rolls.
A bench of Justices Surya Kant and Joymalya Bagchi heard the matter during the entire second half of the day.
Senior Advocate Kapil Sibal (for RJD MP Manoj Kumar Jha) submitted that the exclusion of about 65 lakh voters from the draft electoral roll published on August 1, without any objection to their inclusion, is illegal. However, the bench said that as per the Rules, the persons excluded have to submit applications for inclusion, and it is only at this stage that anyone's objection will be considered.
Sibal then argued that most of the population of Bihar does not possess the documents specified by the ECI as acceptable. Sibal remarked, “Bihar people don't have these documents, that's the point,” prompting Justice Kant to respond, “Bihar is part of India. If they don't have them, other states won't either.”
Sibal said the documents like birth certificates, matriculation certificates, Passport etc are possessed by a very limited segment. Raising eyebrows at the submission, Justice Kant remarked: “There must be something to prove you are a citizen of India… everybody possesses some certificate - you need it even to buy a SIM. OBC, SC, ST certificates…”
Justice Kant added, "It is a very sweeping argument that in Bihar, nobody possesses these documents. Aadhaar and ration card they have?". Sibal then said that the ECI was not accepting Aadhaar, ration and EPIC cards, which most people have.
When Sibal said ECI was claiming Aadhaar wasn't a citizenship proof, Justice Kant pointed out that it was not just the ECI's claim as the Aadhaar Act itself specified that Aadhaar number wasn't a citizenship proof.
Sibal also said that even persons who were in the 2003 roll, though not required to submit the documents, have to submit the enumeration forms. "These are very poor people, they can't do it online. Why should even the people who were in the 2003 roll be asked to give forms? If they don't, they are also excluded," he said.
"These 65 lakhs you are saying (who are excluded) is it with reference to the 2003 roll?" Justice Bagchi asked. With reference to the 2025 rolls, Sibal replied.
Senior Advocate Rakesh Dwivedi, for the ECI, then clarified that persons who are in the 2003 list and their children need not submit any form and about 6.5 crore voters come in this category. He added that the petitioners' arguments were mere "speculations" and requested to allow the ECI to complete the process.
Sibal said that there were 7.9 crore total voters, and as per the ECI claim, 7.24 crore voters submitted the forms. About 22 lakhs are dead, 36 lakhs are said to have shifted. Sibal claimed that the ECI has given these figures without making any enquiries.
Justice Bagchi then stated that the purpose of intensive revision is to find out if dead or migrated people are continuing in the rolls.
Advocate Prashant Bhushan, for the Association for Democratic Reforms, said that the ECI has not published a list of names of the 65 lakh persons who have been deleted from the draft roll; nor have they specified who are dead or migrated persons. The reasons for deletion were also not furnished, he added. Dwivedi, for the ECI, interjected to say that the draft roll and the list of persons excluded were shared with the Booth Level Agents of the parties.
Bhushan said that the ECI has now made the draft roll on their website non-searchable. "Today, what they have done is something mischievous. Till the 4th of August, the draft of the roll was searchable. After the 4th of August, the document is not searchable. They say, go and ask the Booth Level Agent of the political party. Why should I, as a citizen, not know from their document and should ask an agent of the political party?"
Advocate Vrinda Grover argued that the ECI does not have the power to specify that only certain documents can be accepted. The specification of documents has to be done through an amendment passed by the Parliament, Grover said, pointing out that to allow the linking of Aadhaar with the voters' card, a Parliamentary amendment was passed.
"Where does the power of the ECI come? This is an ultra vires exercise. Where is the Parliamentary process to specify the 11 documents?" Grover asked.
Senior Advocate Dr Abhishek Manu Singhvi submitted that the removal of voters from the list on the ground of lack of citizenship must be through a due process, which is not possible just 3-4 months ahead of assembly elections. He questioned the ECI's refusal to accept Aadhaar and EPIC. The persons who are in the rolls from 2003 to 2025 carry a presumption of citizenship, and to doubt them, some material should be there. Instead, all of them cannot be forced to undergo a citizenship determination exercise.
"You cannot start by presumptively doubting the citizenship of 5 crore of voters (who are in the post-2003 roll). The presumption is that they are citizens unless established otherwise through a procedure in accordance with the law....If you declare 5 crore people to be not valid and give them 2.5 months..."Singhvi submitted.
Justice Kant replied that if 5 crore voters are declared invalid, the Court was there to interfere. "Do we have to explain to everyone that if we find something suspicious, can't we include all of them?" Justice Kant said.
"Today, in the guise of methodology of revising the roll, they are reversing the burden of proof of citizenship, saying prove your citizenship, that too in 2.5 months," Singhvi stated.
Reference was made to the judgment in Lal Babu Hussein v. Electoral Registration Officer, (1995) 3 SCC 100 to contend that citizenship determination was not within the domain of the ECI.
"These are people who have voted in 5 or 10 elections already. EC is forgetting that...you cannot become the determiner of citizenship by reversing the buden...Those who have been voters since years, must produce documents!" Singhvi said. If there is any doubt over citizenship, there is a procedure prescribed under the Foreigners Act. In this context, he highlighted that there is no Foreigners Tribunal in Assam, which means that a person is left without any quasi-judicial forum.
"Tribunals are not there in all states...it can't be that Assam (which has the Tribunal) has principle of natural justice, but in Bihar there's all kind of unnatural injustice," he submitted
Political activist Yogendra Yadav, appearing in person, submitted that mass disenfranchisement has already taken place, with the exclusion of 65 lakh voters. The exclusion is not the failure of the implementation of the SIR but the very design of the process, he claimed.
"With one stroke, the percentage of adults eligible to vote in Bihar has come down to 88% already. There would be further deletions now," he said. 8 crore 18 lakh is the adult population in Bihar, as the official projection of the Government of India. Therefore a good electoral roll of Bihar must have 8.18 lakh voters. There is already a deficit of 29 lakhs. The SIR exercise should be to include them, Yadav said.
"This is the first revision exercise in the whole country where there is zero addition and there are only omissions. The EC officers went from house to house. They did not find one single person who should have been included? This was an exercise of intensive deletion. This is not revision," Yadav said.
He also said that the process does not leave out any sufficient time for appeals. On September 30, the list will be frozen. By the time the appeals are filed, the assembly elections will be notified. So even candidates can be left out. "This is the best way to omit any candidate from contestant too," Yadav said.
He stated that there are concerns about the exclusion of specific socio-economic groups. The number of deleted women voters are more than the number of deleted men voters. The death rate among women is not higher than men; and most migrant workers are men. Therefore, the higher percentage of deletions among women was perplexing, he said.
Yadav also produced before the Court two persons, saying that they were declared dead and deleted from the draft Bihar roll. The ECI's counsel objected, asking, "What drama is going on in the court?".
Justice Kant said that there could be some inadvertent errors in the process, for which the exercise itself offers remedies. Dwivedi said that instead of "doing drama before the Court", Yadav should help the said two persons to get their forms uploaded.
The hearing will continue tomorrow.
Developments so far
On July 28, the Court had refused to stop the ECI from publishing draft electoral rolls for Bihar on August 1 as per the schedule notified for the SIR. On this date, Justice Kant said that ECI was merely scheduled to publish a "draft" list and that the Court can ultimately strike down the entire process if any illegality is found. The bench orally told the ECI to consider at least the statutory documents of Aadhaar and EPIC. Justice Kant impressed upon the poll body that instead of "en masse exclusion", there should be, "en masse inclusion."
The next day, on July 29, the Court was told about ECI's statement that 65 lakh persons have not submitted the enumeration forms during the SIR process as they are either dead or have permanently shifted elsewhere. Responding to the apprehensions that 65 lakh voters are going to be excluded from the draft list to be published by ECI, the Court orally said that if there is any mass exclusion, then it will step in.
On August 6 (after the draft list was published), Advocate Prashant Bhushan mentioned an application filed by the Association for Democratic Reforms, which alleged that ECI had not disclosed who the omitted 65 lakh voters were and that the lists at the block level were not shared with the political parties. ADR's application further claimed that even in case of some voters who were included, the BLOs had 'not recommended' the names and reasons for exclusion were not made available. The ECI countered, saying that the draft list was shared with the political parties before publication. The bench however asked it to respond to the allegations in writing.
Thereafter, ECI filed an affidavit stating that it is not obligated under the applicable Rules to publish a separate list of persons who have not been included in the draft electoral roll. It further submitted that the Rules do not mandate it to furnish reasons for the non-inclusion of any individual in the draft roll. Even though there is no statutory obligation, the ECI added that it has shared with political parties the booth-level list of individuals whose Enumeration Forms were not received due to any reason and sought their assistance in reaching out to those persons.
Background
Vide an order dated June 24, 2025, the Election Commission of India initiated a Special Intensive Revision of electoral rolls in Bihar in exercise of powers under Section 21(3) of the Representation of People Act, 1950.
The petitions challenging ECI's order were listed on July 10 before a partial Court working days bench of Justices Sudhanshu Dhulia and Joymalya Bagchi, after an urgent mentioning was made. The said bench orally commented that the determination of citizenship was not the function of ECI and that it was the prerogative of the Union Government. The bench also urged the ECI to consider Aadhaar, Voter ID and Ration cards in the Bihar SIR process.
Subsequently, ECI filed its counter-affidavit, stating that Aadhaar, Voter ID and Ration cards are not reliable documents for inclusion in the electoral roll during the ongoing SIR in Bihar, since the process is a fresh revision of the electoral rolls. The ECI also defended its authority to seek proof of citizenship, stating that it is statutorily bound to ensure that only citizens of India are registered as voters.
In response to ECI's counter, ADR filed a rejoinder, alleging that enumeration forms of voters, used to update the electoral rolls, were being mass-uploaded by the Electoral Registration Officers (EROs) without the consent of voters, to meet the "unrealistic" timelines set by ECI. Relying on ground reports of senior journalist Ajit Anjum, ADR further stated that in some cases, enumeration forms of even dead persons were being submitted, and ECI guidelines were being violated.
The petitions challenging the Bihar SIR are filed by opposition leaders including KC Venugopal (INC), Rajya Sabha MP Manoj Kumar Jha (RJD), activist Yogendra Yadav, Lok Sabha MP Mahua Moitra, Advocate Ashwini Kumar Upadhyay, and organizations such as the Association for Democratic Reforms, PUCL and National Federation for Indian Women.
Among other things, the petitioners contend that the SIR process is hasty and likely to disenfranchise crores, especially Muslims, Dalits, and poor migrants. Further, they challenge the shift of burden from the State to the citizen to prove their eligibility and point to the exclusion of Aadhaar and ration cards, even though Aadhaar has a wide use in Bihar and was accepted for the 2024 General Elections.
It is argued that in Bihar, a state with high poverty, illiteracy, and migration, the ECI-mandated documents, such as passports, birth certificates, matriculation certificates, permanent residence certificates, and others, are not widely available. The petitioners also claim that this is the first time when the ECI is asking people who have voted multiple times to prove their eligibility, failing which their names may be deleted.
Some of the petitions state that the SIR violates Section 22 of the Representation of the People Act, 1950, and Rule 21-A of the Registration of Electors Rules, 1960, both of which require adequate procedural safeguards. As an interim measure, the petitioners seek immediate stay on the SIR exercise and suggest that ECI can use the electoral rolls as updated in January this year.
Case Title: ASSOCIATION FOR DEMOCRATIC REFORMS AND ORS. Versus ELECTION COMMISSION OF INDIA, W.P.(C) No. 640/2025 (and connected cases)
https://www.livelaw.in/top-stories/supreme-court-eci-bihar-special-intensive-revision-of-electoral-rolls-300646
