Challenge to the ECI’s Revision of Electoral Rolls in Bihar

On 12 August, a Division Bench of Justices Surya Kant and Joymalya Bagchi heard substantive arguments challenging the Special Intensive Revision (SIR) of electoral rolls in Bihar. While Senior Advocate Kapil Sibal argued at length, Advocate Prashant Bhushan and Senior Advocates Vrinda Grover and A.M. Singhvi also made brief interventions. In an unusual gesture, the Bench heard a petitioner in person. Towards the end of the hearing, Yogendra Yadav was allowed to present for 15 minutes, considering his expertise in election studies. 

At various points during the proceedings, Senior Advocate Rakesh Dwivedi, representing the Election Commission of India (ECI), intervened to refute the petitioners’ contentions.

Sibal: Voters in previous electoral rolls at risk of exclusion 

Sibal, appearing for Prof. Manoj Kumar Jha, argued that voters already included in the 2003 electoral roll were at risk of exclusion because they were required to submit forms again. The Bench pointed out that these voters were not required to submit supporting documents. Sibal conceded this point but reiterated that their names would be deleted if they failed to submit the forms. He highlighted that many poor voters, who were not a part of the previous electoral roll, lacked access to documents proving their citizenship. 

Justice Kant appeared skeptical of this argument, stating that it was unlikely that all citizens would lack access to their documentation. Sibal countered by presenting statistics showing that only 3.05 percent of Bihar’s population possesses a birth certificate, one of the eleven documents required by the ECI. After Justice Kant described this as a “sweeping argument,” Sibal clarified that most people do have an Aadhaar Card and a Ration Card, which the ECI had refused to accept for this exercise. 

Justice Bagchi inquired whether the exclusion of 65 lakh voters in the draft rolls referred to the 2003 electoral rolls. Sibal clarified that the figure referred to the supplementary revision of rolls conducted in 2025, which is a separate annual exercise carried out by the ECI.

Bhushan: ECI refuses to share names of deleted electors 

The Court was informed that the 65 lakh removed voters included 22 lakh electors who had passed away and 32 lakh who had relocated. Bhushan, appearing for lead petitioner, the Association for Democratic Reforms, submitted that the ECI website did not provide a list of these individuals and that the ECI had refused to provide this information upon request.

Dwivedi interrupted, stating the allegations were false. Bhushan rebutted that while the ECI provided this data to Booth Level Agents (BLAs) of various political parties, it refused to share the information with the petitioners. Bhushan stated that the ECI had on record the details of voters who had died and possessed the exact numbers, but they refused to share the same. He added that he had obtained a list of two constituencies from “whistleblowers.” This list, he claimed, contained the names of voters who had filled out forms, along with comments from Booth Level Officers (BLOs) on whether they should be included in the roll. He then questioned the basis for this process, asking whether the BLO has the authority to make such a recommendation.

Dwivedi pointed out that all of Bhushan’s submissions were speculative and requested the Court to wait for the conclusion of the exercise. He noted that only ADR had raised these concerns, as no political party had come forward. Justice Kant intervened, stating that this was a case of “trust deficiency.”

Grover: ECI usurping the power of Parliament 

Grover appeared for Arshad Ajmal. Her concern was with the documents that the ECI had mandated for the exercise. She contended that the ECI’s refusal to consider Aadhaar and Ration Cards was unlawful and exceeded the authority granted by the Representation of the People Act, 1950. Grover stated that rule-making power under the Act is vested solely with the Central Government.

She referred to Form 6 of the Registration of Electors Rules, 1960, which details the process for seeking inclusion in the electoral roll. Grover argued that Form 6 requires “inclusive and accommodative” documents, and she pointed out that Parliament had amended the form specifically to include the Aadhaar card.

Grover contended that the ECI, while acting in a “consultative” capacity, is bound by the provisions of the Act, and any rule changes must be made through a notification in the Official Gazette. Her written submissions stated, “No such notification or laying has occurred in relation to the SIR, which is an executive order of the ECI without the force of law.”

She submitted that the ECI’s position would transform the “commission into an absolute despot.” Additionally, she pointed out that her rejoinder included information about migrant workers in Delhi who were unable to submit their enumeration forms and were among the 65 lakh voters deleted from the electoral roll.

Singhvi: Test of citizenship by ECI

Singhvi argued that the ECI is conducting the entire exercise without jurisdiction, describing it as a citizenship test in “camouflage.” He pointed out that the ECI has refused to consider Aadhaar and EPIC cards, claiming they are not conclusive in determining citizenship, even though citizenship determination is “not in the domain of the ECI at all.”

Further, he stated that the ECI has developed a system that presumptively doubts a person’s citizenship, whereas the presumption should correctly be in favour of citizenship validity. Referring to the birth certificate as a required document, Singhvi noted that most people in Bihar lack a digital system to store their certificates. He added that the ECI “was never intended to be a police of citizenship.” 

He questioned the basis of the ECI to presumptively declare 5 crore voters as “not valid”, and provide them two and a half months to submit their forms. He relied on Lal Babu Hussein v Electoral Registration Officer (1995), which he said made it clear that a person may be deprived of their citizenship only through an order of the Central Government, and that the ECI is not involved in this process. A person is only deleted from the electoral role if they lose their citizenship. 

Yadav: Largest disenfranchisement in the history of the world 

Yadav began by stating that he wished to present facts and research rather than speak on the law and the Constitution in the presence of “legal luminaries.” He contended that the deletion of 65 lakh voters was unprecedented and that the SIR was an exercise of removal, not inclusion. He added that the number of excluded voters was bound to increase beyond 65 lakh, potentially reaching one crore. This, he alleged, was “not a failure of the SIR but a design.”

He pointed out that the exercise shifts the responsibility of inclusion from the state to the individual, which will inevitably result in the exclusion of eligible voters. He referred to the example of the United States, where relying on individual initiatives often leads to an incomplete voter list. This shift, he contended, disproportionately affects marginalised and poor voters.

Yadav drew attention to the fact that more female voters have been deleted from the list than male. He highlighted that women generally have lower migration and mortality rates than men, which suggests an “anti-woman bias” in the process.

Yadav questioned why the ECI did not include even a single new voter in the ongoing exercise. Intensive revision is meant for both the exclusion and inclusion of new voters, but the non-inclusion of even a single new voter renders the entire exercise specious, he suggested.

He also raised concerns about the timeline for the exercise. He noted that with elections in Bihar expected on 22 November 2025, the electoral roll is likely to be frozen on 30 September. This would mean that a voter whose name had been deleted a week before 30 September would have no remedy, as their application for correction would be considered only after the freezing date. It would be “impossible” for each Electoral Registration Officer (ERO) to process thousands of forms on a daily basis.

Following his submissions, he brought two individuals before the Bench who had been declared dead under the new exercise. This prompted resistance from Dwivedi, who stated that Yadav was “overplaying” the issue. He argued that Yadav could simply use a digital instrument to upload the individuals’ information instead of “making a drama.” “Please help these people and upload it, help us!” he exclaimed.

The Bench appreciated Yadav’s submissions, irrespective of whether the Bench would partly or wholly agree with him. Justice Surya Kant, as if to answer Dwivedi’s concerns, defended Yadav’s effort to demonstrate excluded voters by bringing two common voters, presumed dead, to the court room. He said: “It is good that the message goes that common persons like them have access to the Supreme Court”.

Arguments are scheduled to continue on 13 August, with more petitioners expected to conclude their submissions.