Election Commission cornered in the Supreme Court — Here is why

Taking note of the election commission’s submission that the list of 11 documents laid down by it to prove ‘identity’ and ‘citizenship’ in Bihar is ‘illustrative’ and not exhaustive, the Supreme Court on Thursday, 10 July, suggested that ‘in the interest of justice’, it should consider Aadhaar, EPIC and Ration Card as well. The commission has been directed to explain reasoning in each case in which it refuses to consider either of these identity proofs.

The court has thus taken care of one of the most pressing concerns raised by the petitioners. It has also shifted the burden of proof to the election commission from the voters, potential or those on the rolls. Despite not staying the Special Intensive Revision (SIR) of electoral rolls in Bihar ordered by the commission, the court has thus taken the wind out of the commission’s grand plan.

The Court has also grabbed with alacrity the offer made by the commission’s counsel to prepare the draft electoral roll but not publish it before the next date of hearing on 28 July 2025.

The election commission is right in pointing out that Aadhaar biometric identification is a proof of identity and address, not citizenship. That is the reason why even foreigners staying in India for some length of time--as students, research scholars, entrepreneurs, professionals or as employees—are also entitled to Aadhaar.

They need it for buying a car, insurance or for getting a rental accommodation, to cite some examples. This is also the reason why the number of Aadhaar numbers in especially metropolitan cities like Delhi is higher than the number of voters.

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Contrary to the media and BJP’s obsession with Rohingyas and Bangladeshis posing as ‘voters’, and thus Indian citizens, the number of Nepalis living in Bihar is likely to be much higher, given the long and open land border that Bihar shares with Nepal.

This is what activist and commentator Yogendra Yadav had suggested at the very beginning and sooner the election commission grasps this, it would make life easier for everyone.

Tibetans living in India and refugees from Myanmar, Bangladesh, Pakistan and Afghanistan also may well have Aadhaar and some of them may even have got into the electoral rolls. It is for the election commission to weed them out and their number is unlikely to be significant.

The Supreme Court’s intervention is also likely to address the concerns of millions of migrant workers from Bihar who are working in places far from home. The unreasonable expectation of the election commission for them to return home to submit documents and prove their citizenship within a month will now give way hopefully to a more pragmatic examination of their Aadhaar and EPIC cards issued by the commission earlier.

By insisting that the SIR exercise should be allowed to continue and not ‘stayed’ by the court, the election commission may have made its position untenable.

If it decides to accept Aadhaar, EPIC and the Ration card, as suggested by the apex court, as identity and address proof, it defeats the original purpose for which the SIR was initiated, namely that such proofs were misused in the past. If it refuses to accept the suggestion, it will have to explain reasons at the next hearing and it may not find it easy.

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During Thursday’s hearing the court did not press the two more concerns raised by the petitioners. One of them relates to the competence and authority of the election commission to ascertain citizenship—which, as the court pointed out, is the job of the ministry of home affairs (MHA)—and the other related to the unseemly haste with which the exercise was initiated and ordered to be completed.

It has not explained yet why it was in a hurry to conduct the SIR so late and why it wanted to complete it before the next assembly election due by November 2025. Why not take more time and complete the exercise in the next six months or a year and use the more robust electoral roll from the next election? The commission will have to answer both these questions at the next hearing.

Petitioners rightly pointed out that 10 elections, five for the assembly and five for the Lok Sabha, have already been held in Bihar on the existing rolls. They also argued forcefully that summary revisions of electoral rolls have been carried out every year, the last one completed in January 2025.

The petitioners argued that voters already on the electoral rolls (and holding EPIC Voter IDs) must be presumed to be citizens as the ECI itself had made them voters. If the ECI wished to remove them from the rolls because it suspected their citizenship, it had to present evidence and conduct hearings under the RP Act.

None of the several other documents on the ECI’s list (e.g., caste certificate or matriculation certificates) proved citizenship either. Section 23(4) of the Representation of Peoples Act expressly authorised the use of Aadhaar cards to verify an individual’s identity for inclusion in the electoral rolls, they argued.