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11 Nov 2025, 01:30 PM
The Supreme Court on Tuesday (November 11) orally remarked that a notification issued by the Unique Identification Authority of India (UIDAI) cannot be the basis to stop the use of the Aadhaar card as a proof of identity for the purpose of inclusion in the electoral roll, since the Representation of the Peoples Act 1951 specifically allows such use.
The Court remarked that an executive notification cannot override a statutory provision.
A bench comprising Justice Surya Kant and Justice Joymalya Bagchi was hearing the petitions related to the Special Intensive Revision (SIR) of the electoral rolls of various states. Advocate Ashwini Upadhyaya, a petitioner seeking to conduct a pan-India SIR, has filed an application seeking to recall the Supreme Court's earlier order which allowed the use of the Aadhaar card as a document of identity for the Bihar SIR. He referred to a notification issued by the UIDAI that Aadhaar card is not a proof of citizenship. He challenged Form 6 (the form for inclusion of first-time voters) allowing persons to mention their Aadhaar number as identity proof.
Justice Joymalya Bagchi then referred to Section 23(4) of the RP Act, which permits the use of Aadhaar card as proof of identity. The Judge explained that a notification cannot override the statutory provision.
"[A] government notification does not override primary legislation. Aadhaar has been given a status with regard to identity in the primary legislation namely RP Act. Until and unless that provision is amended or you challenge that provision as ultra vires, a notification by UIDAI, in the executive sphere, will not override a primary legislation. Form 6 is a product of Section 23(4), it's a delegated legislation to give effect to the statutory provisiob... So, just assailing Form 6 in light of an executive notification by UIDAI, you cannot strike down the Section. The Section cannot be amended by an executive direction. It can only be amended by the Parliament...as much as, Aadhaar will not be a proof of citizenship because the Parliament mandated that. But Aadhaar is definitely a proof with regard to identity", said Justice Bagchi.
Section 23(4) provides thus:
"The electoral registration officer may for the purpose of establishing the identity of any person require that such person may furnish the Aadhaar number given by the Unique Identification Authority of India as per the provisions of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (18 of 2016):
Provided that the electoral registration officer may also require the Aadhaar number from persons already included in the electoral roll for the purposes of authentication of entries in electoral roll and to identify registration of name of the same person in the electoral roll of more than one constituency or more than once in the same constituency."
During the hearing, Upadhyay told the bench that since his counsel - Senior Advocate Vijay Hansaria - was not permitted to argue, he returned Upadhyay's brief. On this, Justice Kant clarified that the bench has consistently said that it would hear everyone, but those supporting SIR exercise would be heard after the Election Commission.
"In a way you are supporting the initiative taken by ECI. Therefore, we thought that what Mr Hansaria will argue will be supplementing the reasons which Mr Dwivedi will present in support of the exercise. If you feel that you have to argue something independently, then we will hear you separately", said Justice Kant.
In response, Upadhyay said that he wishes to make submissions in relation to Article 355 of the Constitution, which stipulates duty of the Union to protect States against external aggression and internal disturbance. When the bench said that it would hear his plea after November 26 (when other pleas challenging SIR were being listed), the counsel opposed, stating that he has also challenged Form 6.
"SIR started, but Form 6 has not been amended. Aadhaar authority has issued notification that this is neither proof of date of birth nor [citizenship]", said Upadhyay. At this point, Justice Kant recapitulated that in its interim order, the bench had reiterated that under the statutory scheme, Aadhaar is neither proof of citizenship nor domicile.
However, Upadhyay persisted that Form 6 provides for Aadhaar card as a proof of date of birth and the same is contrary to the Aadhaar Act and the Representation of People Act. Hearing him, Justice Bagchi commented that as per Section 9 of Aadhaar Act, Aadhaar shall not a proof of 'citizenship'. The judge then added that a UIDAI notification cannot override provision of the RP Act which provides that Aadhaar can be a proof of identity.
Case Title: ASHWINI KUMAR UPADHYAY Versus UNION OF INDIA AND ORS., W.P.(C) No. 634/2025
Also from the hearing -