ON JUNE 24, THE ELECTION COMMISSION OF INDIA (‘EC’) announced a Special Intensive Revision (‘SIR’) of the Electoral Roll (‘ER’) in Bihar, just months ahead of the State Assembly elections. On paper, such revisions are standard electoral procedures, but the conditions attached to this one, particularly the requirement to prove citizenship, make it exceptional and deeply troubling in its scale, speed, and the conditions imposed.
Hannah Arendt argues in The Origins of Totalitarianism that citizenship is the fundamental “right to have rights”. In other words, it is the gateway through which all other rights are accessed. In this light, SIR’s stringent citizenship verification risks the systematic disenfranchisement of adult citizens, considering their ability to produce documents and the EC’s ability to carry out massive citizenship verification on short notice and limited timeframe.
In a state where over one-third of the population lives below the poverty line, a substantial portion of the population has migrated to other states for work, and the monsoon season has already brought floods to several districts, SIR’s stringent citizenship verification risks not only administrative oversight but also the systematic disenfranchisement of adult citizens, stripping them of their most basic political entitlement, the right to vote.
Critics argue that the way this whole exercise is conducted shows that the intention of the EC is more about exclusion and less about inclusion. This is evident in the deletion of 65.6 lakh names from Bihar’s electoral rolls following the SIR process. This drastic reduction will not only impact the upcoming election but also exacerbate the challenges faced by marginalised groups, particularly women and Muslims. Recent data reveal a concerning trend in Bihar, indicating that districts with larger Muslim populations have higher rates of voter exclusion. Women constitute 55 percent of those deleted from the draft voter list following the SIR. This alarming statistic raises questions about the accessibility and inclusivity of the voting process in the state.
Constitutional framework on elections
The Constitution framers debated at length the potential election architecture in India. They discussed it at two different levels – at the level of the body conducting elections and at the level of voting rights of the citizenry. On the first count the questions that engaged the Constituent Assembly were - who shall conduct elections and in what manner? Should the body conducting elections be unitary or federal in character? Should it be temporary or permanent in nature? What should be its powers and the criteria to establish its independence? On the second count, the questions were – should we choose universal adult suffrage? What should be criteria for voting rights? How do you determine the list of voters? And most importantly, what should be the nature of the concomitant “voting rights”?
The Constitution answered these questions as follows: Election commission shall be established as a permanent body in charge of conducting periodic elections. The post of election commissioner(s) shall be constitutionally safeguarded to immunize it against any executive or judicial interference. The State shall provide universal adult franchise for every citizen above the age of 18 years.
The role of Election Commission
Ambedkar had provided strong reasons behind a permanent election body. His arguments resonate more with us than with the people he was addressing back then. He argued that the government in certain provinces was “instructing and managing things in such a manner that those people who do not belong to them either racially, culturally or linguistically, are being excluded from being brought on to the electoral rolls.”
The role of EC in this context becomes fundamental. It regulates elections which remain the sole criteria of justification for democratic governance in India. The working of EC is constitutionally mandated, both expressly and impliedly. In essence, there are some issues on which it has been expressly mandated to have control, on others it spreads its authority in the garb of its mandate and yet on some other issues, while it does not seem to have the mandate, it simply moves ahead to regulate them with minimum impunity. For example, Article 324 allows the EC to regulate elections and to prepare electoral roll. The law allows the EC to conduct summary or intensive revision. However, the EC also conducts Special Intensive Revision (‘SIR’). According to former chief election commissioner, O.P. Rawat, the word ‘special’ is added by the EC, “when they do not conform to the template of the revision under the law but tinker with certain elements.”
In the context of the SIR, Article 324 and 326 of the Constitution are important. Article 324 gives the power to prepare ER to the EC. The power to “prepare” also covers the power to “revise” the ER. Article 326 defines the criteria for adult suffrage and the ground of disqualification as a voter. Section 16 of The Representation of People Act, 1950 (RP Act) provides grounds of disqualification from being included in the ER. Article 326 and Section 16, when read together, establish non-residency and non-citizenship as two major criteria for disqualification from ER.
The election architecture
The fundamental role of EC in determining the election architecture is key to our understanding of elections in India.
There are usually two ways in which the EC exercises its authority – first, by regulating the registration of political parties; second, by determining the election schedule. There is a third aspect, less discussed in academic literature, but more directly linked to how elections are conducted – the control over material infrastructure like managing polling booths and controlling electoral rolls.
The unpublished work of Sabyasachi Das is a crucial example to demonstrate how control over material infrastructure resulted in disproportionate voting patterns in favour of the ruling party. The recent press conference by the Lok Sabha Leader of Opposition, demonstrating what he called as “Vote Chori”, is another example to show how failure of the EC in regulating election architecture could result in thousands of unaccounted votes in a single voting constituency.
On the question of judicial understanding of EC’s mandate and working, Mohsin Alam Bhat indicates that the higher courts “have consistently adopted a highly deferential approach to the breadth of the ECI’s powers.” For instance, per Justice H.R. Khanna, “The fact that the power…has been vested in such a high authority … raise[s] a presumption, though rebuttable, and provide a guarantee, though not absolute but to a considerable extent, that the power would not be misused but would be exercised in a fair and reasonable manner.”
Additionally, the plenary power of the EC is largely understood as lying beyond the purview of parliamentary legislation. For instance, the Supreme Court has noted, “As a matter of law, the plenary powers of the Election Commission cannot be taken away by law framed by Parliament. If Parliament makes any such law, it would be repugnant to Article 324.”
The right to vote
The right to vote is not considered a fundamental right under the Indian Constitution. The trajectory from Ponnuswami (1952) to Anoop Baranwal (2023), establishes that the right to vote is still considered a statutory right.
It seems that the Constituent Assembly debates influenced the judicial understanding of the right to vote. The Advisory Committee led by Ambedkar, was in favour of including adult suffrage as a fundamental right. However, faced with opposition from other members, it was decided to include “right to vote” alongside the role of the EC in conducting fair and free elections, keeping only the statutory safeguards alive to protect it.
It is a curious mistake that the right to vote is not identified as a fundamental right even by the Supreme Court till date. While periodic and free & fair elections have been declared fundamental to a functioning democracy and, therefore, a part of basic structure in Indira Gandhi v. Raj Narain (1975), the more fundamental aspect upon which both elections and democracy thrive – the right to vote, misses the mark. In the absence of proper protection of voting rights, how could one envision the universal adult franchise, pursued actively by the Constitution framers?
The Supreme Court in a recent Constitution Bench decision, In Re: Section 6A (2024) has observed that citizenship status is a gateway to other constitutional rights. That being the case, how could voting be excluded from being enjoyed as a fundamental right?
Perhaps, the dissenting opinion of Justice Ajay Rastogi in Anoop Baranwal, where he identified the right to vote as an expression of the choice of the citizen and a fundamental right under Article 19(1)(a), could help develop jurisprudence in this direction further.
Reading citizenship as capability
Citizenship is not merely a legal status. It is a foundational capability upon which people access and exercise their political, social, and economic rights. The structural and institutional marginalisation of Kosi-Seemanchal restricts individuals' capabilities necessary to meet the requirements of the SIR. Amartya Sen’s “capabilities approach” is an important prism to highlight why SIR disproportionately impacts regions and communities that lack the necessary conditions to exercise their voting rights. Capability deprivation leads to predictable patterns of exclusion, disproportionately affecting poor and minority communities.
Yet today, these are the very communities being asked to prove their date of birth, place of origin, and parental lineage at a time when even literacy was scarce. The SIR process shows how the Commission’s method undermines real capabilities on the ground by demanding complex documentation in a limited time from those who have the least capability to produce it. This effectively transforms citizenship from an inherent right into a conditional privilege, accessible mainly to those who possess socio-economic and cultural capital to prove it. Consequently, electoral roll revision, instead of being neutral, amplifies pre-existing inequalities.
If the state truly values universal suffrage, the SIR should be redesigned to expand capabilities rather than constrain them. Disenfranchisement of the citizenship of this marginalised community would strip them of capabilities that the state itself is obliged to protect.
Once political participation is eroded, other rights, from access to welfare schemes to protection from discrimination, become difficult to claim. For many here, the vote is the only equal right they possess. SIR poses a risk of depriving them of even this right, leading to unequal citizenship. While in economic and social terms, they remain far from parity. However, the ballot paper treats every voter equally.
How does SIR prioritise exclusion over inclusion?
The EC holds the constitutional mandate to conduct the “revision”. The mandate when translated into action must, however, be tested on the grounds of “intention” and “method”.
Does the intention behind the SIR match the objective highlighted by EC? Three issues are contested here. Citizenship, which is determined in accordance with the Constitution and conferred by the Central government (based on an application for citizenship) in accordance with the Citizenship Rules, 2009. Census (defining domicile), which is done to calculate the demographic of the population across criteria such as age, gender, community, religion, caste, geographical boundaries etc. ER, which determines who amongst the citizens are eligible to vote. The purpose of ER altogether is separate. It is neither impinging upon citizenship status nor the domicile of the electorate.
The intention behind SIR will match the objective if the ER only excludes non-citizens (Section 16, RP Act) and non-residents (Article 326). Unfortunately, this is not the case. When documents like Aadhar card and ration card get excluded from the list of identity documents and parents’ identity is made compulsory, the intention does not seem to achieve the objective.
SIR’s design appears to focus on exclusion rather than inclusion by ignoring the real capabilities on the ground. The structural disadvantages in the Kosi-Seemanchal region mean the population’s capability to prove citizenship is already compromised by setting tight timelines and complex proof requirements. Furthermore, submitting a declaration for the inclusion of voters left outside the electoral rolls was designed in a way that shifted the burden of proof entirely onto the voter. If your name is missing, it is up to you to prove your citizenship and that too in a 30 days’ window.
Sagar observes that while intensive revision of electoral rolls have been conducted in the past, the proof of citizenship was never demanded, and the exercise was never carried out at such short notice. He argues that the EC’s “cutoff dates of 1 July 1987 and 2 December 2004 are based on the definition of birthright citizenship under the Citizenship (Amendment) Act, 2003, which was passed by the Atal Bihari Vajpayee government to lay the groundwork for an NRC throughout the country. That exercise was never carried out.”
However, by adopting this citizenship test for the SIR, “the EC appears to have taken on the onus of carrying out a de facto NRC without any sort of legislation or even an executive order.” At a more factual level, “between 1 August and 1 September, 243 EROs (Electoral Registration Officer) and 2,976 AEROs (Assistant Electoral Registraon Officers) are expected to evaluate over 72 million forms, which comes to around seven hundred forms per person per day.” Is this possible at all?
EC’s response to the challenge
In response to criticism, the EC said its policy would adhere to the principles of natural justice by giving eligible voters facing deletion a “reasonable opportunity” of being heard and furnishing relevant documents. However, the report from SIR says otherwise. As of August 11, the EC has received a mere 165,000 applications for inclusion, raising concerns about whether sufficient outreach has been conducted to engage affected voters.
In response to an application filed by Association for Democratic Reforms (ADR), seeking the publication of a list of persons not included in the draft roll, and the furnishing of reasons for their non-inclusion, EC told the Supreme Court that it is not bound by the Rules to publish a separate list or to disclose reasons of persons not included in the draft electoral roll.
This raises significant questions: why is the EC hesitant to disclose this information when millions of voters risk disenfranchisement? Particularly, when the opposition is highlighting potential fraud in the voter list with evidence and accusing the EC of collusion with the ruling party. Additionally, as Yogendra Yadav argued before the Supreme Court, how is it possible that the EC is unable to add a single new name in the electoral list?
Targeting muslims through 'citizenship'?
There is a high probability that the revision process goes beyond mere preparation of the ER. The purported National Register of Citizens (NRC) and the Citizenship (Amendment) Act, 2019 are already under challenge before the Supreme Court. The Government has announced undertaking a Census soon. The revision, if not done properly, would have deep reaching implications, determining both the domicile and the citizenship of the electorates.
The timing and nature of this exercise cannot be viewed in isolation from Bihar’s political climate. In both the 2019 and 2024 Lok Sabha elections, BJP leaders repeatedly raised concerns about illegal immigration in Seemanchal. The logic often cited was high population growth, ignoring that poverty and lack of access to reproductive healthcare are far more explanatory than any conspiracy.
Last year union minister Giriraj Singh led the Hindu Swabhiman Yatra across Seemanchal, making speeches about so-called "love jihad," Hindu insecurity, and the need for NRC in the region. Recently, Union Home Minister Amit Shah, during a rally in Bihar’s Sitamarhi, said infiltrators have no right to vote and names of infiltrators must be removed from the voters’ lists. He further attacked the Opposition, accusing them of opposing the revision because “names of infiltrators” were being removed from the lists were their voters.
The EC maintains that the SIR exercise was initiated following concerns raised by political parties, probably referring to the BJP. In this light, ER revision does not appear to be a neutral administrative update but rather a pre-election filtering tool that could disproportionately target a particular group and systematically produce exclusion, statelessness, and denial of rights.
Lessons from Assam
The SIR in Bihar cannot be fully understood without looking at what happened in Assam with the National Register of Citizens (NRC). In 2019, after years of verification, 19.06 lakh residents were excluded from the NRC. Most of them were Bengali-origin Muslims. Most were poor, illiterate, and had lived in Assam for generations. Their exclusion was not only because of their foreign origins, but also because many lacked the documents to prove otherwise. Consequently, they face mass disenfranchisement that effectively erodes the “right to have rights. They were systematically excluded from citizenship lists, labelled illegal, stripped of rights, and stuck in the legal process despite facing structural barriers.
In many cases, people are frequently declared foreigners without proper notice, a hearing, or a chance to present evidence. The same trajectory is now visible in Bihar. Given the intention of the ruling party and the methods in which the SIR exercise is conducted, it is already in the process of mass disenfranchisement in the name of accuracy in ER. And the longer-term danger is the normalisation of document-based citizenship verification as a political tool.
As one of us has previously argued, “the dispossession of Muslim citizenship under the CAA is … based on the logic of dispossession from land. While one may argue that a person has stayed on this land for generations, the requirement is to demonstrate the tie with the land based on the birth certificate, mention in the electoral list or any other national identity document. This is akin to detaching the ‘structure’ (civic life of a citizen) from the ‘place’ (decades long presence in India). The requirement of the proof of birth would first establish the domicile and then only one would be guaranteed the protection of civic life.”
The ongoing SIR in Bihar is nothing short of depriving people of their civic identity followed by national identity. Non-inclusion in electoral roles would indicate the loss of domicile and, therefore, loss of citizenship in the long run. We need to remember that determination of the civic tie is being challenged at the very basic level by the local administration. Moreover, contestations over such claims, when put before the judicial institutions, for instance, the Foreigners Tribunals in Assam, have given rise to deeply disturbing trends.
The recent Report by Mohsin Alam Bhat, Arushi Gupta and Shardul Gopujkar, released only last month, unearths glaring facts on what is happening in Assam in the name of citizenship ascertainment. The Report categorically puts that out of the 4.36 lakh cases referred to Foreigners Tribunals (‘FT’) in Assam around 1.66 lakh people have been declared to be foreigners. Additionally, the Report argues that the Border Police, state government, FT members, government lawyers, the High Court and the Supreme Court—all of them as one common system in this story.
There is no doubt that the Bihar SIR, which is expected to be repeated in other parts of the country, has pushed the lifeline of a constitutional democracy, the citizenry, at the margins, while putting the EC at the center-stage. The constitutional logic is reversed!