Bihar SIR row: Including, excluding citizens from electoral rolls within ECI remit, says SC

New Delhi: The Supreme Court on Tuesday said including or excluding citizens and non-citizens from electoral rolls was within Election Commission of India's remit as it called the Bihar special intensive revision (SIR) row "largely a trust deficit issue”.

A bench of Justices Surya Kant and Joymalya Bagchi, which commenced the hearing on a batch of petitions, including some filed by leaders of opposition parties including of Rashtriya Janata Dal (RJD) and the Congress, posed searching questions to the petitioners and said any inadvertent error in declaring a living person dead or dead person alive could be rectified.

"The law of granting or taking away citizenship has to be passed by Parliament but the inclusion and exclusion of citizens and non-citizens from the electoral rolls is within the remit of the election commission," the bench told senior advocate Abhishek Singhvi, appearing for one of the petitioners.

The top court also agreed with the Election Commission of India (ECI) decision to not accept Aadhaar and voter cards as conclusive proof of citizenship in the ongoing exercise and said it has to be supported by other documents.

"You see, the election commission is correct in saying that Aadhar can't be accepted as conclusive proof of citizenship, it has to be verified. Section 9 of the Aadhaar Act, specifically says so," the bench told Singhvi.

The senior lawyer said in the 22-year period between 2003 (year of last intensive revision in Bihar) and 2025 many people had voted in five to six elections but suddenly before two months of the election there was presumptive exclusion saying these people will not be on the list.

"Presumptively citizenship cannot be doubted for five crore people," Singhvi said, accusing the poll panel of declaring five crore people invalid.

The bench said if anything suspicious was found it could direct including all those in the 2025 list in the electoral roll.

While Singhvi agreed that the ECI had the power for inclusion or exclusion of citizens or non-citizens from the electoral roll, he said the poll panel couldn't determine citizenship.

"EC was never intended to be the policeman of citizenship… What is happening here is de facto deletion. Non inclusion is the clever word being used here. ECI cannot become the determiner of citizenship," he added.

Senior advocate Kapil Sibal, appearing for RJD leader Manoj Jha, said despite residents holding Aadhaar, ration cards and EPIC cards, poll officials refused to accept these documents.

"Is it your argument that people who have no documents but are in Bihar and therefore he should be considered as a voter of the state. That can be allowed. He has to show or submit some documents (sic)," the bench said.

When Sibal said people were struggling to find birth certificates and other documents of their parents, Justice Kant said, "It is a very sweeping statement that in Bihar nobody has the documents. If this happens in Bihar, then what will happen in other parts of the country?"

The top court called the SIR row "largely a trust deficit issue” as the ECI claimed roughly 6.5 crore people of the total 7.9 crore voting population didn't have to file any documents for them or their parents featured in the 2003 electoral roll.

"If out of 7.9 crore voters, 7.24 crore voters responded to the SIR, it demolishes the theory of one crore voters missing or disenfranchised," the bench told Sibal.

Advocate Prashant Bhushan, appearing for NGO Association for Democratic Reforms questioned the timeline for the completion of the exercise and the data of 65 lakh voters who were declared as dead or migrated or registered in other constituencies.

Political activist Yogendra Yadav, who addressed the court in person, questioned the data given by the poll panel and said instead of 7.9 crore voters there was a total adult population of 8.18 crore and the design of SIR exercise was actually to delete the voters.

"They (EC) were not able to find any individual whose name was added and the booth level officers visited house to house for deletion of names," Yadav said, calling it a case of "total disenfranchisement".

Interestingly, he produced in court three persons, who he said were declared dead by the ECI, prompting senior advocate Rakesh Dwivedi, appearing for the poll panel, to object.

Dwivedi protested against "such drama" in the courtroom and said if Yadav was so concerned, he could help the poll panel in updating the records by including their names.

The bench said in case of any inadvertent error, there could be rectification as it was only the draft stage.

Dwivedi pointed out the exercise of such nature was "bound to have some defects here and there at the draft stage" and to claim dead persons were declared alive and alive as dead could always be corrected.

The hearing would resume on Wednesday.

On July 29, terming the election commission a constitutional authority deemed to act in accordance with law, the top court offered to "step in immediately" if there is "mass exclusion" in the SIR of electoral rolls in Bihar.

The draft roll was published on August 1 and the final roll is scheduled to be published on September 30 amid opposition claims that the ongoing exercise will deprive crores of eligible citizens from their right to vote.

The EC affidavit has justified its ongoing SIR of electoral rolls in Bihar, saying it adds to the purity of the election by "weeding out ineligible persons" from electoral rolls.