Institute of Legal and Management Studies

The Supreme Court on Thursday (October 16) adjourned the hearing of the petitions challenging the Election Commission of India's Special Intensive Revision of Bihar electoral rolls to November 4.

Bihar assembly elections are scheduled to take place on November 6 and November 11 in two phases.

During the hearing today, Advocate Prashant Bhushan, for the ADR, fervently urged the bench of Justice Surya Kant and Justice Joymalya Bagchi to direct the ECI to publish the list of names added/deleted in the final list.

The bench, after noting the ECI's submission that they are in the process of publishing the list, said that it would wait to see what the poll body was publishing.

"We have no doubt that they will fulfill their responsibility...they are bound to publish...we are not closing the matter," Justice Kant said.

At the outset, Bhushan submitted that the Election Commission of India should publish the final list of voters, specifying the names added and deleted, along with the reasons.

"They have not disclosed the complete list of new deletions of electors on draft rolls but not on final rolls...what are the new deletions not disclosed...tomorrow and 20th they will freeze the final roll...unfortunately, they have not been putting out the final roll on their website. That needs to be done immediately," Bhushan submitted.

Senior Advocate Rakesh Dwivedi, for the ECI, said that they are in the process of publishing the final list. He said that for the first phase of elections, October 17 is the last date for filing nominations, and hence the list will be frozen as on that date. For the second phase, October 20 is the last date for nominations and hence the time is available till then. Dwivedi asked why Bhushan should ask for a direction when the ECI was already doing the same.

"Let's see what they publish. Suppose final list gives an indication who was added, deleted...there are some typographical mistakes...as Mr Yadav pointed out...we expect them to look into these things as a responsible authority and come out with remedial measures," Justice Kant said.

Dwivedi also submitted that the ECI has not received any appeals against deletions, despite the Court ensuring the availability of free legal aid for voters as per the order passed last week.

Senior Advocate Gopal Sankaranarayanan and Advocate Vrinda Grover, for other petitioners, urged the Court to hear the constitutional issue whether the ECI has the power to conduct SIR. The bench asked the ECI to file its written notes on this aspect.

The bench also noted that the ECI has filed an affidavit today refuting the arguments made by ADR and Yogendra Yadav on the last occasion and allowed the petitioners to respond to the same.

To recap, on the last date (October 9), the Court passed an interim order to ensure free legal aid for persons excluded from the final voters' list so they can file appeals against their exclusion. Further, activist Yogendra Yadav urged the Court to direct the ECI to disclose how many persons were found to be foreigners after the exercise. He alleged massive irregularities in household data and accuracy of the final rolls, while alleging that SIR led to the "largest-ever shrinkage of electoral rolls in the history of the country".

Developments so far

On July 10, the Court passed an order directing the ECI to consider Aadhaar card, ration card and the EPIC as documents for inclusion in the voters list. On July 28, the Court refused to stop the ECI from publishing draft electoral rolls for Bihar on August 1. But, it orally told the ECI to atleast consider Aadhaar Card and EPIC. A day later, the Court was told that 65 lakh persons are likely to be excluded from the draft electoral rolls. In response, it orally said that if there is mass exclusion, it will step in.

On August 6 (after the draft list was published), ADR filed an application alleging inter-alia that ECI had not disclosed details of the omitted 65 lakh voters. ECI filed its counter-affidavit in response.

On August 12, the petitioners opened arguments, contending inter-alia that the Bihar SIR was illegal and the onus of proving citizenship cannot be shifted on voters/electors. On August 13, referring to Section 21(3) of the Representation of the People Act, 1950, the bench asked both sides whether ECI does not have residual power to conduct an exercise like Bihar SIR in a "manner it deemed fit". Insofar as the issue of West Bengal SIR initiation was raised, the bench said that the same will be dealt with later.

On August 14, the Court directed ECI to publish the names of the 65 lakh excluded voters on Bihar CEO's website as well as websites of the District Electoral Officers, along with the reasons for their exclusion. The information was to be displayed in EPIC-searchable format.

On August 22, the Court directed ECI to allow approximately 65 lakhs excluded voters to submit applications for inclusion through online mode along with their Aadhaar card.

On September 1, the Court dealt with applications seeking extension of the deadline to file claims/objections to the draft roll. In this regard, ECI told the Court that claims/objections could be filed even after the deadline and all such claims/objections filed before the last date of nominations will be considered. Considering, the Court did not extend the deadline. On a request for a direction that ECI accept Aadhaar card of 7.24 crore (approx.) voters as well, whose enumeration forms were submitted, it told the petitioners to flag specific instances where ECI has denied accepting Aadhaar of a voter in the 7.24 crore category.

On September 8, the Supreme Court directed ECI to treat Aadhaar card as a "12th document" which could be produced as proof of identity for the purpose of inclusion in the revised voters list of Bihar. The Court clarified that Aadhaar shall not be a proof of citizenship and that ECI officials would be entitled to verify the authenticity and genuineness of Aadhaar cards produced by voters.

On October 7, the bench had orally said that there was some confusion as to whether the voters added in the final electoral list were from the list of voters who were previously deleted from the draft list or totally new names. The remark came in response to the petitioners' demand that the Election Commission of India must publish the list of names of 3.66 lakh voters who were additionally deleted from the final list, and the names of the 21 lakh voters who were included in it. The matter was re-listed today, asking EC to furnish the necessary information.

Case Title: ASSOCIATION FOR DEMOCRATIC REFORMS AND ORS. Versus ELECTION COMMISSION OF INDIA, W.P.(C) No. 640/2025 (and connected cases)