EC Officials Can Now Report Persons to Foreigner Tribunals: New Clause 5(b) in Bihar Roll 'Update' Sparks Concern

New Delhi: A drive by the Election Commission of India (ECI) to "update" voter lists in Bihar already threatens to disenfranchise millions. Now it carries a graver risk: stripping people of their citizenship.

The risk stems from Clause 5(b) of the ECI’s June 24, 2025, directive. The clause allows local Electoral Registration Officers (EROs) to refer anyone they suspect of being a foreign national to citizenship authorities.

Having outlined the procedure for an ERO or an assistant ERO to follow in cases where a proposed elector's eligibility is in doubt, the clause says that the ERO “will refer cases of suspected foreign nationals to the competent authority under the Citizenship Act, 1955”.

It adds that “for these purposes, the AERO shall exercise [the] ERO's powers independently u/s [under section] 13C(2) of the RPA [Representation of the People Act] 1950”.

Legal experts and rights analysts warn this turns a routine update into a ‘backdoor NRC’ (National Register of Citizens), putting the fate of India's poorest people in the hands of local officials with vast, unchecked power.

The stakes are now much higher. The initial fear was that crores of Bihar’s poorest citizens could lose their right to vote. Now, they could lose their right to live in India.

From disenfranchisement to deportation

The directive is part of a voter revision ahead of Bihar's 2025 assembly elections. It requires 4.74 crore voters – nearly 60% of the electorate – to prove their eligibility with few documents, mainly a school or birth certificate.

Data shows these documents are a luxury for many in Bihar, especially for people belonging to Extremely Backward Classes (EBCs), Scheduled Castes (SCs), and Muslim communities, who face high poverty and low literacy.

Clause 5(b) adds a new and worrying dimension.

The clause is "dangerously significant," Supreme Court lawyer Ali Kabir Zia Choudhary told The Wire.

"It will trigger a citizenship determination process, leading to disenfranchisement, loss of residency, detention, even deportation," Choudhary said. "Millions could lose citizenship. This is likely to create a new scheme of corruption, since these volunteers and EROs would have the power to endanger one’s citizenship with a stroke of a pen."

Supreme Court lawyer Mohammad Aman Khan agreed. "This clause creates a parallel, informal pathway for citizenship verification without any of the legal safeguards," Khan told The Wire. "An ERO's 'suspicion' – a term that is undefined and vague – becomes the trigger for a process that should be governed by rigorous legal standards, not administrative discretion."

Raising the stakes for the common person

For an ordinary person in Bihar, the change is catastrophic because until now being unable to produce a school or birth certificate was not even a barrier to voting, let alone remaining in the country.

"Earlier the stakes were the people’s constitutional right to participate in democracy," says Choudhary. "But the EC has just raised it to the right to live in India! People who do not have documents to obtain the right to vote... how are they going to participate in a citizenship determination process? They can’t obtain two square meals a day!"

He calls the policy an example of "abject lack of empathy," noting the commission ignores the poverty in a state "where people eat rats to avoid starvation."

Khan notes that this turns the legal bond between citizen and state on its head. "The state is essentially telling its poorest citizens that their existence is conditional," he argues. "The inability to produce a piece of paper, often due to the state's own past failures in education and birth registration, could now lead to an existential crisis."

A 'backdoor NRC' without oversight

Many are comparing the plan to the controversial NRC exercise in Assam, but experts suggest the situation in Bihar could be worse.

"The comparison is very fair," Choudhary asserts. "EROs under clause 5(b) questioning citizenship is the first step in an NRC-style vetting. But unlike the Assam NRC, this process has neither any statutory basis nor is it under the supervision of the Supreme Court of India."

Khan explains the danger. "The Assam NRC, for all its deep flaws, was a statutory, court-monitored process. This is decentralised and opaque, giving immense, unchecked power to thousands of individual EROs across the state. It’s a recipe for arbitrary action."

The power to simply "suspect" someone is the crux of the problem.

"India in general suffers from rampant corruption and discrimination," warns Choudhary. "Local EROs, without adequate training, legal knowledge, or expert oversight, will make arbitrary, biased, and politically motivated decisions. There is no due process, such as a notice, a hearing, or a reasoned decision before a case is referred."

Legal recourse and a call to act

Both lawyers agree the Election Commission must act now.

"Withdraw 5(b)," Choudhary states bluntly, "and explicitly state that EROs have no power to refer or initiate any process questioning citizenship."

Khan suggests that at a minimum, "The ECI must immediately issue a clarification or a stay on Clause 5(b). In the absence of that, citizens' groups should prepare for public interest litigation."

For individuals wrongly targeted, the path is difficult. While they can petition the High Court, Choudhary notes this is "nigh impossible, economically and logistically" for the people most likely to be affected.

The exercise, experts conclude, turns a core principle of justice on its head.

"‘Presumption of innocence’ is a fundamental principle of law," Choudhary concludes. "In India, this principle is turned head over heels. It is for a poor citizen to prove his citizenship and not the mighty government. And now, we are all suspects."

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