Institute of Legal and Management Studies

In the Bihar SIR matter, the Supreme Court on Thursday (October 9) passed an interim order to ensure free legal aid to the persons excluded from the final voters' list to file appeals against their exclusion.

A bench of Justice Surya Kant and Justice Joymalya Bagchi requested the Bihar State Legal Services Authority to issue necessary communication to the District Legal Services Authorities to ensure the availability of paralegal volunteers and legal aid counsels who can assist the excluded persons in filing appeals.

"Since time to file appeals is running short, we deem it appropriate as an interim measure to request the Executive Chairman, Bihar SLA, to send communication, preferably today itself to all secretaries of DLSAs to provide services of paralegal volunteers, free legal aid counsels to assist excluded persons to file statutory appeals. Secretaries to immediately re-notify mobile numbers and full description of paralegal volunteers in each village, who in turn will contact the Booth Level Officers. They will collect information with respect to persons who have been excluded from the final list. Para Legal Volunteers would reach out to persons, informing them of their right to appeal. They will offer services to draft appeals and provide free legal aid counsel," the bench observed.

The bench clarified that the benefit of this order will apply to even those persons whose names were not in the draft list.

Election Commission refutes claims of illegal exclusion

Today at the outset, Senior Advocate Rakesh Dwivedi, for the Election Commission of India, addressed an instance raised by petitioner ADR regarding a person whose name was included in the draft list getting deleted from the final list. Refuting the allegation, Dwivedi said that the person was not there in the draft list as he did not submit the enumeration form. Saying that a false affidavit has been filed, which amounts to perjury, Dwivedi said, "the organisation must satisfy itself of the affidavit before throwing it on the Court."

Dwivedi said that there is still a window of five days available for the excluded persons to file appeals and said that the petitioners and political parties should rather help the affected parties in filing appeals.

The bench expressed its displeasure with Advocate Prashant Bhushan, ADR's lawyer, for handing over the person's affidavit without due verification. "The person should have disclosed correct information...we do not appreciate this," Justice Kant said. Justice Bhuyan also expressed a similar sentiment, saying that when a document was handed over across the bar, there should have been more responsibility. Bhusan replied that the affidavit was handed over to him by a responsible person. He said that the Legal Service Authority could be asked to verify the genuineness of the affidavit.

Bhushan said that there are affidavits of twenty other persons. Justice Bagchi was however displeased, "After our experience with this affidavit, we don't know how authentic the others will be." Justice Bagchi said that the ADR ought to have verified if the person was there in the draft list, before handing over the affidavit to the Court.

Justice Kant asked why the aggrieved persons can't avail the appellate remedies. He added that the Court can ensure free legal aid by the Legal Services Authority for them.

No elector has come to the Court saying they were not served with the order, Dwivedi said. He assured that if appeals are filed, they will be decided promptly.

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)