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On 10 July 2025 the Supreme Court held a preliminary hearing on the challenge to the special intensive revision of Bihar’s Electoral Rolls currently being conducted by the Election Commission of India (‘ECI’). This post outlines the contours of the hearing and assesses the Court’s interim findings, which will govern the exercise until a more substantive hearing scheduled for 28 July 2025.
Brief background
As part of the ECI’s organisation of elections, Section 21 the Representation of the People Act 1950 (‘RP Act’) directs the ECI to prepare and regularly update electoral rolls. The ECI updates rolls in two ways: (1) regular summary revisions which make inclusions and deletions to the existing rolls based on deaths, new voters, migration etc.; and (2) intensive revisions, where the ECI throws out the existing electoral roll and starts from scratch. Bihar had its last intensive revision in 2003 and since then has had regular summary revisions to its rolls with the latest being completed in January 2025.
In June 2025 the ECI decided to undertake an intensive revision of Bihar’s electoral rolls. Three factors made the ECI’s decision questionable and led to the present petitions. First, Bihar’s assembly elections are due in Oct-Nov 2025, raising questions of whether the intensive exercise could be completed in time. Second, the ECI’s notification made a distinction between voters already on the electoral roll based on the 2003 intensive revision exercise and voters added to the rolls subsequently, with the latter having to fill an enumeration form and provide supporting documents (the requirement to provide documents by 26 Jul 2025 was dropped after these petitions were filed, but exactly how the ECI will treat forms without documents is unclear). Third, the list of documents required by the ECI excluded Aadhaar cards, driving licenses, the ECI’s own EPIC Voter IDs, and ration cards (the list of eleven accepted documents ranged from passports to matriculation and caste certificates).
While there were contentions regarding the very power of the ECI to conduct such an exercise, today’s interim hearing at the Supreme Court primarily came down to two issues. First, whether the timing of the exercise would lead to widespread disenfranchisement, and second, whether the ECI should accept documents such as Aadhaar, EPIC Voter ID, and ration cards.
Disenfranchisement and timing
The Petitioners’ primary contention was that for voters added to the rolls post 2003, the current exercise overturned the settled legal position that once a voter is on the electoral rolls, they cannot be removed other than through procedures under the RP Act itself (see Indrajit Barua v ECI 1985). The RP Act provides a detailed procedure which includes a hearing before someone’s name is removed from the rolls. The ECI could not make treat some names on the existing rolls as sanctified and demand others re-establish their eligibility to vote in a revision exercise. Thus, in the Petitioners’ view, the ECI had two options: (1) conduct the intensive revision from scratch for all voters including those on the rolls prior to 2003 (which the ECI cannot practically do prior to the upcoming assembly elections); or (2) rely on the Jan 2025 rolls based on regular summary revisions. According to the Petitioners, casting the burden on voters added to the rolls post-2003 to prove that they ought to be included in the rolls would lead to widespread disenfranchisement (especially given the complex documentary requirements discussed below).
The ECI sought to reassure the Court that all voters on the rolls now would be included in the draft electoral roll. The ECI then argued that the Petitioners had jumped the gun. In the ECI’s view, the question of the disenfranchisement could only be assessed by the Court after the current intensive revision exercise was completed and the ECI published a draft electoral roll – which it is scheduled to do on 1 Aug 2025. The ECI highlighted that there was a thirty-day window after the publication of the draft electoral roll wherein individuals could object to the draft rolls and add their names to the rolls.
Both the ECI’s arguments have problems. If everybody on the current rolls will be included on the new draft rolls on 1 Aug 2025, this begs the question why the current intensive revision is necessary. The ECI’s own justification for the exercise presumes that some voters currently on the rolls will not be included on the 1 Aug draft rolls. For these excluded voters, the ECI’s second argument would fundamentally create a fait accompli. Once the draft electoral rolls are published on 1 Aug 2025, for anybody excluded, the burden of being added to the rolls is placed on the individual. Finally, there is a question whether the thirty-day window would be sufficient for excluded individuals to be re-added to the rolls (difficulties here would disproportionately impact the poor and marginalised).
The Court seemed to grasp both these difficulties. While the Court did not stay the intensive revision exercise, it flatly refused the ECI’s request that the matter only be taken up after the draft electoral rolls are published on 1 Aug. By doing so, it protected its ability to intervene and direct that the January 2025 rolls be relied on. However, the Court was also typically deferential to the ECI and refused to direct that the exercise be carried out after the upcoming assembly elections. As the Petitioners pointed out, ten elections had been held in Bihar on the existing rolls, and absent compelling evidence of widespread inaccuracy, there was little harm in conducting another election especially as summary revisions have been carried out every year till Jan 2025.
Documentary proof
The arguments on documentation highlighted a key divergence between the Petitioners and the ECI. The ECI argued that it had excluded Aadhaar cards because they are not evidence of citizenship (s.9 of the Aadhaar Act). The Commission pointed out that as only citizens could vote, the ECI’s mandate extended to ensuring that all prospective voters were indeed citizens. Responding to this, 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 and could not simply require vast swathes of voters to re-prove citizenship. Further, the Petitioners argued that none of the other documents on the ECI’s list (e.g., caste certificate or matriculation) proved citizenship. Thus, on the Petitioners view, the ECI itself had demonstrated that the true purpose of the exercise ought to be proof of identity and residence, not citizenship. As this was the purpose of the exercise, they highlighted that s. 23(4) of the RP Act expressly authorised the use of Aadhaar cards to verify an individual’s identity for inclusion in the electoral rolls.
The ECI’s list of acceptable documents simply does not align with its stated reason for excluding Aadhaar and Voter IDs. If the purpose of the intensive revision is to establish citizenship, this raises larger questions about whether the ECI has the constitutional and legal mandate for such an exercise (the Court in passing observed this was traditionally the remit of the Home Ministry). It also begs the question of why other documents such as matriculation certificates which do not establish citizenship are being accepted. If the purpose of the intensive revision is to establish identity and residence, then the exclusion of Aadhaar cards and Voter IDs appears arbitrary and contrary to the express statutory mandate of s. 23(4) of the RP Act.
While the ECI was at pains to point out that the list of acceptable documents in its notification is non-exhaustive, it refused to give the Court an assurance that it would accept Aadhaar cards, EPIC Voter IDs and ration cards. This prompted the Court to frame an order suggesting that the Court was of the prima facie view that these documents ought to be included and that the ECI ought to consider accepting such documents. On the one hand this can be viewed as a failure of the Court to pass a clear direction to the ECI that must legally accept Aadhaar cards, EPIC Voter IDs, and ration cards, especially given the statutory mandate in s. 23(4) of the RP Act (vis-à-vis Aadhaar cards). On the other hand, one can argue that the Court is engaging in a form of dialogic judicial review where it is testing the rationality of the ECI’s justifications but allowing the ECI to sufficient flexibility to frame an appropriate policy. Judgement on the court’s wisdom will likely be framed in the context of what the ECI does now.
Conclusion
With the Court refusing to injunct the revision exercise, the question of whether the exercise is legally and constitutionally compliant will now be decided at the next hearing on 28 July. However, today’s hearing has set up a dynamic between the Court and the ECI. With the exercise ongoing, the ECI’s hand will be strengthened by the next hearing as it will undoubtedly argue that the exercise is nearing completion and can be concluded in time for the assembly election. However, if the ECI does decide to accept the documents suggested by the Court, the risk of disenfranchisement is also substantially lowered. If the ECI continues to refuse to accept these documents, or if the Court reaches a finding that the exercise is bad in law, the Court has left itself wiggle room to injunct the publication of the draft electoral rolls prior to 1 Aug and direct the exercise be delayed until after the assembly election. So what today’s hearing has done is set up a form of high-stakes constitutional chicken between the Supreme Court and the ECI, and the question is who blinks first.
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