Revision of electoral rolls | Day 23: Petitioners and political parties should encourage voter turnout, instead of challenging ECI, argues Dwivedi
Challenge to the ECI’s Revision of Electoral Rolls in BiharJudges: Surya Kant CJI, Joymalya Bagchi J
Today, a Bench of Chief Justice Surya Kant and Justice Joymalya Bagchi heard further arguments from Senior Advocate Rakesh Dwivedi, who defended the Election Commission of India’s (ECI) Special Intensive Revision (SIR) of electoral rolls in Bihar.
The Court has now completed 23 days of arguments in the challenge, where arguments have incrementally focused on questions of citizenship and voting rights. While Dwivedi explained the ECI’s role in determining the citizenship of electors, he also suggested that the political parties and petitioner organisations failed to affirm the participation of electors in the process.
ECI has a constitutional duty to determine citizenship
During the previous hearing, Justice Bagchi asked Dwivedi whether the ECI should wait for foreigner tribunals to decide an elector’s citizenship before removing their name from the rolls. Dwiviedi dived into the statutes, citing Article 326 of the Constitution and Section 16 of the Representation of the People Act, 1950. He explained that the Commission must consider three factors to determine voter eligibility: whether a person is a citizen, whether they are over the age of 18, and whether they are disqualified on grounds of non-residence or unsoundness of mind.
Invoking Pandit Jawaharlal Nehru, Dwivedi stated that any other consideration apart from these “three limbs” would violate the “grain of the Constitution”. Advocate Prashant Bhushan, appearing for the Association for Democratic Reforms, interjected that the petitions do not challenge the exclusion of non-citizens from the rolls. Instead, the central question is whether the ECI has a specific role in determining citizenship or should it be vested with another authority.
Dwivedi responded that the ECI bears a “constitutional duty” to determine citizenship, but only for the purpose of registering a person as an elector. He assured that this determination does not carry any other consequences, such as deportation. Referring to Section 16, he noted that citizenship is a primary prong for disqualification.
SIR exercise mainly applies to those born after 1987
Dwivedi then stated that the 2003 electoral rolls hold a probative value and the ECI is not examining the citizenship of those who are already included. “Because it has been examined once”, he stated. He argued that individuals need not submit documents if their parents were part of the 2003 rolls. The exercise largely applies to those who turn 18 after the 2003 rolls were finalised, i.e. it concerns only those born after 1987.
He cited Section 3 of the Citizenship Act, 1955, to note that the SIR criteria closely aligns with the provision. He further clarified that the 11 required documents are only necessary if an individual has no connection to the 2003 rolls or their parents’ citizenship, describing the ECI’s approach as “very liberal and soft-touch.”
Democracy should not be adversarial
Dwivedi attacked arguments which claimed that the SIR was designed to disenfranchise voters. In a sharp monologue, he pointed out that none of the 65 lakh deleted voters had filed an appeal before the ECI; no one had approached the High Court with a writ petition; and no voter had approached the Supreme Court. He stated that the petitioners are merging distinct concepts, clarifying that exclusion and disenfranchisement are different. He added ECI’s goal is to maximise enfranchisement.
He argued that exclusion occurs due to death, migration or duplication and is not exclusively linked to the question of citizenship. He stated: “Why is it that the petitioner wants the dead people on the voter list? Why do they want those who have permanently shifted…which means that somebody wants to exploit the situation”. Instead, petitioner organisations should participate in the preparation of the electoral rolls.
Justice Bagchi asked whether any of the 65 lakh voters were excluded on grounds of citizenship. Dwivedi responded that he will check. However, he shifted the focus to the voters themselves, arguing that many citizens see no point in joining the list.
Dwivedi argued that there was a 67 per cent turnout in the Bihar polls, pointing out that 33 per cent of voters did not show up. This means that a third of the voters in the new roll did not cast their vote. Dwivedi contended that the democratic exercise should be cooperative rather than adversarial, suggesting that the petitioners impeded the process when they should have worked to ensure higher turnout. He stated that if the petitioners genuinely cared about “civil liberties”, they would treat democracy as a celebration to encourage voting. “So far as Bihar is concerned, none of them did that task”, Dwivedi stated.
The Court will continue hearing arguments on 20 January 2026.