Inclusion, exclusion of citizens from electoral rolls within EC remit, says SC; backs EC stand on Aadhaar

The Supreme Court on Tuesday said inclusion and exclusion of citizens or non-citizens from the electoral rolls was within the remit of the Election Commission and backed its stand to not accept Aadhaar and voter cards as conclusive proof of citizenship in the Special Intensive Revision (SIR) of voters' list in Bihar.

As the row over the ongoing SIR escalated inside and outside Parliament, the top court also observed that the dispute was "largely a trust deficit issue” since the Election Commission(EC) has claimed that roughly 6.5 crore people of the total 7.9 crore voting population in poll-bound Bihar didn't have to file any documents for them or their parents featured in the 2003 electoral rolls.

A bench of Justices Surya Kant and Joymalya Bagchi made the remarks as it commenced hearing a batch of pleas challenging the EC's decision to conduct the SIR exercise.

After senior advocate Abhishek Singhvi, appearing for one of the petitioners, accused the EC of "presumptive exclusion" of five crore people in the SIR, the court indicated that if anything suspicious was found in making them invalid it could give a direction to include all of them in the electoral rolls. Leaders of opposition parties including Rashtriya Janata Dal (RJD) and the Congress were among others who have filed the petitions.

Posing searching questions to the petitioners, the court 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 Singhvi.

The top court also agreed with the EC 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 contended that 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.

While Singhvi agreed that the EC 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. EC 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?"

"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 EC, 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 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 SIR in Bihar, saying it adds to the purity of the election by "weeding out ineligible persons" from electoral rolls.

PTI Inputs