SIR| Verification Of Citizenship Only For Electoral Purposes; The Method Is 'Liberal, Soft-Touch': ECI Tells Supreme Court

In the ongoing challenge to the SIR across states, the ECI  told the Supreme Court that the verification of the citizenship of the voters was being done only for electoral purposes and not with the intent to deport non-citizens. The ECI also argued that the process of verification was a 'liberal, soft-touch' approach and did not involve a rigorous investigation per se. 

The bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi was hearing the matter.

Yesterday, Sr Advocate Rakesh Dwivedi, appearing for the ECI, countered the reliance placed by the petitioners on the decision in Lal Babu Hussein (1995) . As per the Lal Babu Hussein judgment, a person included in the voters' list is presumed to be an Indian citizen and the burden is on the objector to prove otherwise.

It was the petitioners' argument that, in the present SIR process, the entire burden is reversed, and the voters are asked to prove citizenship even if they are included in the voters' list.

Dwivedi stressed that the factual backdrop in which Lal Babu was considered was distinctively different from the present scenario. He argued that in Lal Babu, (1) the case hearing was preceded by an SIR- thus the Court presumed that citizenship of the voters must have been verified; (2) the entire exercise was done by the police; (3) no report of the police was there.

In the present case, the Counsel submitted, (1) there is no police involvement, the ECI is carrying out the SIR; (2) the SIR has happened in Bihar and is ongoing in few other states; (3) and there is 'sufficient probative value' given to inclusion in prior voter list a per direction no. 3 of the SIR notification. 

The direction states : “If any person whose citizenship is suspected is shown to have been included in the immediately preceding electoral roll, the Electoral Registration Officer or any other officer inquiring into the matter shall bear in mind that the entire gamut for inclusion of the name in the electoral roll must have been undertaken and hence adequate probative value be attached to that factum before issuance of notice and in subsequent proceedings.”

Dwivedi explained that as per this direction, the ECI has sufficiently adhered to the probative value quotient by ensuring (1) enumeration forms are sent to all the voters as of June 2025; probative value to all those in 2002 rolls; (3) persons are given the opportunity to establish linkage to any of the parents who are on the 2002 rolls; (4) those who cannot establish the linkage can still verify through the other documents mentioned in the SIR notification.

Right To Vote Lies In Adult Suffrage Under Article 326- Which Has 3 Main Conditions

Dwivedi answered the question previously raised by the bench on whether the right to vote of a person can be taken away till the Central Government determines the question of citizenship.

According to Dwivedi, the answer lies in the holistic understanding of Article 326 read with S.16 of the Representation of the People Act. 

He pointed out that Article 326 has an exhaustive definition of adult suffrage, which is not just limited to 18 years but also 2 other qualifying factors- not disqualified by law and registered as a voter. 

Article 326 states : "The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less thaneighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election." 

Dwivedi thus submitted that "Adult suffrage is not just age, it has 3 limbs constituting the limbs of the adult suffrage- in the constitutional sense ." 

He then emphasised the conditions under S.16 of the RP Act make it further clear as who can be eligible to vote. 

Dwivedi also submitted that the petitioners' argument that if a person is not declared as a citizen, still should be included in the rolls, would go against the Constitution, as the Constitution is citizen-centric.

Determining Citizenship Is Only For The Purpose Of Revising Electoral Rolls, Not For Weeding Out Foreigners: ECI Clarifies 

During the hearings, Advocate Prashant Bhushan, appearing for the ADR, said that it was not the petitioners' case that non-citizens be allowed to vote; the petitioners' main issue was whether ECI could have the powers to determine citizenship. 

 "I don't think there is a dispute on whether someone who is not a citizen should be added to the list; the point is who does the exercise of determining the citizenship if there is a dispute- that's the question," Bhushan had argued.

In response, Dwivedi clarified that, "The ECI is under a constitutional duty to determine citizenship for the limited purpose of registering a person as an elector. It will not have any other consequence. We cannot deport him, we cannot determine how long you stay in India, but the Constitutional duty, as per the assembly debates, says that nobody (citizen)should be excluded. It is not the case of ECI that we are determining citizenship for other purposes or Act...my reach is within the field of elections, not beyond elections.

The CJI articulated the argument of the ECI, asking that if a person says that he is not a citizen but wants to be a citizen and participate in the elections, that is not ECI's power to determine, but if a person says he is a citizen and wants to vote, ECI has a right to hold an inquiry and determine whether you are a genuine citizen.

Dwivedi replied in the affirmative. 

Process Of Identifying Citizens Is On The Lines Of A 'Liberal, Soft-Touch Policy' : ECI Stresses 

On the issue of the process being adopted to verify the voters, Dwivedi submitted that ECI has taken a 'liberal, soft-touch' approach, which does not require a rigorous or in-depth fact-finding like a Court. The process of verifying citizenship, he stressed, was aligning with S.3 of the Citizenship Act. 

Section 3 of India's Citizenship Act, 1955, as amended, defines Citizenship by Birth, stating anyone born in India after the 2003 Amendment (Dec 3, 2004) is a citizen if both parents are Indian citizens, or one is a citizen and the other isn't an illegal migrant; prior to this, rules varied based on birth dates (pre-1987: automatic; 1987-2003: one parent citizen). 

" The SIR criteria, which we have adopted, align very close to S.3 criteria, and it is a soft-touch liberal approach. We are not scrutinising it, we are saying 2003 list - name is there, we will accept it as probative, we are not deciding ...we are not going in great detail like a judicial inquiry, whether you have produced this or that. And lastly, even if you have no connection with 2003 at all. which is a rare situation, anybody in Bihar would be having some parent in the previous electoral roll - but even if you have no connection, 11 documents are there, including the Aadhar card for verification purposes." 

Not Disenfranchisement, Only Inclusion-Exclusion As Per Our Constitutional Duty

The Sr Counsel also argued that it was incorrect to assume that the SIR process was 'disenfranchising' the voters, and that a distinction has to be drawn between 'disenfranchisement' and the legal procedure of inclusion/exclusion. 

He further pointed out that not a single voter/ common man has come before any High Court or the Supreme Court, challenging the SIR or raising the issue of deletion of names from the rolls, except for political leaders and reform groups like the ADR, PUCL

"Nobody out of the 65lakhs has filed an appeal, nobody went to HC to file a WP...no voter who has been excluded has come ahead to file a WP, everybody knows proceedings are going on here (Supreme Court), all over India. What we have is the ADR, PUCL and MPs from different states." 

Expanding on the argument of constitutional duties, Dwivedi said that as part of the roles of the ECI under Article 326, it was a primary agenda of the ECI to increase the registration of valid voters on the rolls. 

"Our duty under 326 is to maximise and optimise the enfranchisement....ECI has no reason to exist if the voters are not there, so our job is to maximise and optimise the registration of voters."

He further explained, " As the bench has said - when you prepare a voters' list under 326, people are bound to be excluded on grounds of death, migration etc - the very fixation of 18 years of age means that from 0-18, they are bound to be excluded, exclusion is implicit, the most important exclusion is death itself- why is it that the petitioners want the dead people to be on the voters' list, why should those migrated to Tamil Nadu or Punjab be on Bihar list? because somebody wants to exploit this situation." 

'Onus Of Burden' Argument Incorrect

Opposing the petitioners' previous argument that the SIR  wrongly seeks the public to prove their citizenship, Dwivedi submitted that the verification should not be seen as 'burden' of proof. Instead, it should be seen as a method of ensuring national security. He explained : 

"One has to produce documents...Every time I enter the SC, we produce our documents/photograph or so and so, at the airport, we show our documents, this is about national security. Iam submitting that this onus of burden argument is not appropriate." 

Dwivedi underlined that while the constitution gave us fundamental rights, it also came with our duties. The right to vote comes with a duty of voter as well. 

"The unfortunate part is that today we lay emphasis on rights but not lay emphasis on the duties, rights and duties are intertwined - eg Art 19 free speech- I have a right, but the constitutional duty is there to increase my knowledge, speech is not given for abusing."

Political Parties Should Cooperate In The SIR, Not Question It 

The ECI also emphasised that political parties must actively cooperate with it in the ongoing SIR of electoral rolls, rather than casting doubts over the exercise. 

Dwivedi emphasised that the preparation and revision of electoral rolls is a constitutional obligation undertaken to strengthen democracy. He argued that while petitioners may seek electoral reforms, political parties are directly invested in the process as they aspire to form governments and must therefore play a constructive role on the ground.

"When we talk of the electoral roll, the ECI is required to do it for the democracy, the petitioners are interested in reforms, the political parties are directly interested because they want to form govts- so is it not the duty of all the political parties to be on ground to assist those who haven't registered"

He noted that political parties were raising concerns about nearly 65 lakh names allegedly being deleted from electoral rolls, but were not addressing the larger issue of reduced voter turnout

"They are worried about 65 lakhs names deleted, but are not concerned about why 33% people did not vote. The malady is somewhere else, if we are not able to bring out people and convince them to vote." 

At this juncture, Justice Bagchi asked if there been any category of deletion on grounds of persons being of suspected citizenship?

Responding to this, Dwivedi stressed that the burden of ensuring an accurate electoral process must be seen as a constitutional duty, undertaken cooperatively rather than adversarially.

He further mentioned that, "Trains are being run for migrants to come and vote, but despite this, people are not voting." 

At this juncture, the CJI weighed in to opine that encouraging voter participation ought to be a prominent agenda for political parties.

 "The political parties, it should be their prominent agenda for them to encourage people to come out and vote, such a valuable  right for democracy."

Agreeing to the same, Dwivedi added that the SIR is a cooperative exercise and should not be seen as a 'burden'. He stressed, "democracy is not a burden; you presume that the election commission is trying to help somebody. Only the other day, I heard a party say in UP that our voters are intact; it is the voters of the ruling party that have been cut." 

He added, " To put the blame on us, well, if it suits the narrative of the political parties, it's fine! today, hardly any institution- if you don't give a verdict in their favour, then you say that Independence..." 

Dwivedi expressed that the SIR was being done for the benefit of all political parties and instead of protesting against the ECI, the parties should have joined hands in the cause. 

"One does not understand. It is for you, you are vying to form a government, why are you not cooperating and coming with us to fill out the forms? Instead of taking out a procession against the ECI, you should have brought that procession of people, standing in queue- please enrol us." 

The Bench will continue the hearing.

Case Details: ASSOCIATION FOR DEMOCRATIC REFORMS vs. ELECTION COMMISSION OF INDIA| W.P.(C) No. 000640 / 2025