The Election Commission of India’s authority to conduct a special intensive review (SIR) of electoral rolls remains under challenge in the Supreme Court, even as the election body has announced the second phase of the SIR, which will cover 51 million voters in 12 states and union territories, including Tamil Nadu, West Bengal, Kerala and Puducherry.
The Supreme Court, in an order dated July 10, highlighted the fundamental issues raised by the petitioners challenging the first phase of the SIR exercise in Bihar. It was mainly about whether the Electoral Commission (EC) had “its own powers to carry out the exercise”. Second, the court noted the petitioners’ objection to the “procedure and manner of conducting the SIR exercise.”
“In this pile of petitions before this court, an important question has been raised that goes to the roots of the functioning of the democratic republic, that is, our country. It is about the ‘right to vote,'” the Supreme Court noted in July.
Voter rights violations
The court noted the petitioners’ argument that the SIR, notified on June 24 under Section 21(3) of the Representation of the People Act, 1950, violated not only that Act but also the Electoral Code, 1960, apart from violating the fundamental rights of voters. Counsel for the petitioners, including advocates Prashant Bhushan, Vrinda Grover and Neha Rathi, argued that the SIR was merely a pretext to conduct “citizenship verification”.
However, the court’s later orders on the SIR diverged in ensuring that voters were not arbitrarily excluded from the electoral roll in Bihar. Although the court did not stay the Bihar SIR exercise, it made several early interventions to bring more transparency to the process, ordering the inclusion of Aadhaar as the 12th proof document and ensuring publication of the draft voter list, among other steps.
Learning experience
The hearing on 9 October gave the first indication that the pan-India SIR has become more or less a done deal, although the court agreed to hear arguments on the constitutionality of the SIR exercise from 4 November. Addressing the EC counsel and senior advocate Rakesh Dwivedi, Justice Surya Kant, who headed the bench, verbally observed that “you, the EC, have decided to do this experience based on (Bihar) would now make you wiser… Next time you implement the SIR module, what you have experienced now would also bring some improvements.”
Indeed, the second phase of SIR in 12 states and UTs introduced modifications such as inclusion of Aadhaar as proof of identity and exemption from submission of documents at the enumeration stage. However, the voter still bears the burden of inclusion in the voter list. The enumeration process itself does not have the benefit of any statutory backing.
However, the EC argued in the Supreme Court that it has plenary power under Article 324 to conduct the SIR and determine the procedure. In this connection, she referred to the court’s 1978 judgment in the Mohinder Singh Gill case, which observed that “Article 324 operates in areas left vacant by legislation and the words ‘supervision, management and control as well as the conduct of elections are the widest terms’.” 324. The Commission may be required to deal with certain situations which may not be provided for in the laws and rules adopted.’
Citizenship verification
Again, the question of the EC’s jurisdiction to delve into the citizenship claims of an already registered voter without any formal objection raised against that person remains open. The crucial point raised by the petitioners was whether citizenship falls under the purview of the EC when specific laws such as the Citizenship Act and the Aliens Act already deal with the issues of acquisition of Indian citizenship and illegal aliens.
A new column in the modified enumeration form allows the voter to provide details of a “relative” who was a voter in the last SIR. Lawyers associated with the Bihar SIR case say this is a step to verify lineage and recalled the “pedigree verification” process followed during the Assam National Register of Citizens exercise, though Assam is not part of the current SIR.
The electoral body claimed it had the power to determine citizenship. The EC noted that one of the basic conditions laid down in Article 326 (adult suffrage) is that a person must be an Indian citizen to be enrolled in the electoral roll. The EC argued that it had powers to check the citizenship of voters to that extent, insisting that “the burden of proving citizenship rests with the person claiming the right to be entered on the electoral rolls”.
The petitioners opposed the EC’s stand, saying it was clearly against the Supreme Court’s 1995 judgment in the Lal Babu Hussain case, which held that the onus of proving citizenship would be on those who register newly and not those whose names are already on the electoral roll.
Published – 28 Oct 2025 22:18 IST
