ECI's Claim That It Can Scrutinise Citizenship in Bihar SIR Is Unconstitutional
The counter-affidavit submitted by the Election Commission of India (ECI) on July 21, 2025 to the Supreme Court (SC) – in response to the batch of petitions challenging the constitutional validity of the Special Intensive Revision (SIR) of electoral rolls in Bihar – clearly mentions that the exercise is not an attempt for mere revision but “a de novo preparation of the electoral roll.”
It means that the intent behind the mammoth task – which has caused chaos and raised serious questions about the integrity of the whole process – is a purely fresh one. Its outcome would be accepted without deference to previous conclusions associated with the electoral roll of the state completed in October 2024 and January 2025.
Because it is a de novo exercise, the ECI, for the first time since its establishment in 1950, has claimed in its affidavit that it has the power to inquire into aspects related to the citizenship of those already registered as voters in the electoral roll or those being enrolled afresh as voters.
In its justification, it invokes, apart from statutory laws such as the Representation of People Act, Article 326 of the Constitution which says that every person who is a citizen of India and is not less than 18 years of age shall be entitled to be a voter.
On July 10th, when these petitions were being heard by the Supreme Court, the ECI defended its decision not to include the voter id and Aadhar card in the list of documents required to complete the SIR in Bihar. To the top court's query on why Aadhar was excluded, the ECI stated that the card does not determine the citizenship status of those possessing it. When the Supreme Court said that determining the citizenship status of an Indian is beyond the remit of the ECI, and the Union home ministry is solely responsible to do so, the ECI did not counter it.
Eleven days later, on July 21, the ECI affirmed through an affidavit that it has the power to enquire into the citizenship of those eligible to get enrolled as a voter under SIR. Strangely, the burden of proof of establishing one's citizenship status shifts to people who have not been provided any document by the state to that effect.
Because voter id cards are issued by the ECI only to citizens of India, people possessing those cards are deemed citizens of our country. The ECI's assertion that it would not accept the voter id card in determining who is a citizen infringes on Article 10 of the Constitution dealing with continuance of the rights of citizenship. It states, “Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.”
Supreme Court questioned the ECI’s power on citizenship in 1994
The ECI, apart from violating the Constitution in its unprecedented pursuit of asking eligible voters to establish their citizenship, is also negating the Supreme Court judgements prohibiting the ECI from enquiring into citizenship issues while making draft electoral rolls.
For instance, in 1992, the ECI ordered a de novo revision of electoral rolls in Assam and its orders to ascertain the citizenship status was challenged in the Gauhati high court in a petition in HRA Chaudhury vs Election Commission of India. In its 1994 order the said high court held:
“…the draft rolls are to be prepared on the basis of the statements submitted by the heads of the households in a constituency in Form 4 under Rule 8…………the statement made by the head of the household has its own value and cannot be lightly brushed aside. Rules do not contemplate any inquiry into the question of citizenship at the stage of preparation of draft roll, although there is provision for objection after a draft roll is published on the ground that a person who is not a citizen of India has been erroneously included.”
The Supreme Court in its judgment and order dated May 5, 1994 upheld the Gauhati high court's order.
Supreme Court's 1992 judgement
In 1992, the Supreme Court held in Lal Babu Hussain vs Electoral Registration Officer and others: “Thus the question whether a person is a foreigner is a question of fact which would require careful scrutiny of evidence since the enquiry is quasi-judicial in character….” It implied that the question of citizenship is to be determined by the authorities vested with such powers under the Citizenship Act 1955 and other laws relating to citizenship.
The court also held that "if any person whose citizenship is suspected is shown to have been included in the immediately preceding electoral roll, the Electoral Registration Officer or any other officer inquiring into the matter shall bear in mind that the entire gamut for inclusion of the name in the electoral roll must have been undertaken and hence adequate probative value be attached to that factum before issuance of notice and in subsequent proceedings.”
It made clear that the basis on which names were included in the existing electoral roll and its evidentiary value must be taken into account while ascertaining the reasons for deleting the names from the draft rolls being prepared. In other words, the burden of proof lies with the competent authority dealing with the citizenship issue and not ECI.
While adjudicating the petition involving Lal Babu Hussain vs Electoral Registration Officer, the Supreme Court found that some residents of Mumbai and Delhi were alleged to be foreigners based on police complaints and they were asked to submit:
- Birth certificates
- Indian passports, if any,
- Citizenship certificates to prove that they are citizens of India.
They submitted ration cards and identity cards issued by the administration in Delhi or Mumbai. But those documents were rejected. The Supreme Court quashed the directive issued by the Election Commission on September 9, 1994, prohibiting the officer from entertaining certain documents and ordered that the documents submitted by the affected people would be received and its evidentiary value assessed and applied in decision-making. Those observations resonate in the context of the SIR in Bihar, where the ECI is insisting on the documents that were rejected by the Supreme Court in 1992.
In view of the aforementioned Supreme Court judgements from 1992 and 1994, in addition to the provision in Article 10 of the Constitution, guaranteeing constitution of citizenship rights, the ECI's claim that it has the power to determine citizenship issue is devoid of constitutional mandate.
S.N. Sahu served as officer on special duty to President of India K.R. Narayanan.
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