Thread by @LiveLawIndia

#SupremeCourt to hear today petitions challenging the Election Commission of India’s Special Intensive Revision (SIR) of electoral rolls in #Bihar.

Bench : Justices Surya Kant and Joymalya Baghci.

Follow this thread for live updates.

#ElectionCommissionOfIndia #BiharSIR2025

On July 28, the Court had refused to stop ECI from publishing draft electoral rolls for Bihar on August 1

On this date, Justice Kant said that ECI was merely scheduled to publish a "draft" list and that the Court can ultimately strike down the entire process if any illegality is found

The bench orally told ECI to consider at least the statutory documents of Aadhaar and EPIC

Justice Kant impressed upon ECI that instead of "en masse exclusion", there should be, "en masse inclusion"

#SupremeCourt #BiharSIR

On July 29, responding to the apprehensions that 65 lakh voters are going to be excluded from the draft list to be published by ECI, the Court orally said that if there is any mass exclusion, then it will step in.

#SupremeCourt #BiharSIR

On August 6 (after the draft list was published), Advocate Prashant Bhushan @pbhushan1 mentioned an application filed by Association for Democratic Reforms, alleging that ECI had not disclosed who the omitted 65 lakh voters were and that the lists at the block level were not shared with the political parties

ADR's application further claimed that even in case of some voters who were included, the BLOs had 'not recommended' the names and reasons for exclusion were not made available

The ECI countered, saying that the draft list was shared with the political parties before publication. The bench however asked it to respond to the allegations in writing

#SupremeCourt #BiharSIR

Thereafter, ECI filed an affidavit stating that it is not obligated under the applicable Rules to publish a separate list of persons who have not been included in the draft electoral roll

It further submitted that the Rules do not mandate it to furnish reasons for the non-inclusion of any individual in the draft roll

Even though there is no statutory obligation, the ECI added that it has shared with political parties the booth-level list of individuals whose Enumeration Forms were not received due to any reason and sought their assistance in reaching out to those persons.

#SupremeCourt #BiharSIR

@pbhushan1 Sr Advocates @KapilSibal and Gopal Sankaranarayanan appearing for petitioners

Sr Advocate Rakesh Dwivedi representing ECI

#SupremeCourt #BiharSIR

@pbhushan1 @KapilSibal Gopal S: The Bihar SIR matter...

J Kant: Just wait for some time, we will take it after fresh matters

Another counsel mentions a matter regarding Bihar Panchayat elections

J Kant: We are only occupied by Bihar

#SupremeCourt #BiharSIR

Hearing begins

Sr Advs Dr Abhishek Manu Singhvi and Shadan Farasat also appearing for petitioners

Sibal: I won't take too much time

Dwivedi: I need to point out. yesterday an IA has been submitted to us. They've annexed 200 pages

J Kant: Will grant you time.

#SupremeCourt #BiharSIR

Sibal: Any person born after 1950 who is not born between 1987 and...after 2003...is under the Constitution deemed to be citizen of India

J Kant: You want to argue the main case on merits? Or on whatever steps are being taken...

Sibal: Time is short, so I will point out process being followed. Integrity in question

J Kant: Such a process can or cannot be issued is one part. Second part is legality of the process.

@pbhushan1 @KapilSibal Gopal S: J Bagchi last time said we will be protected if there is mass exclusion. Mass exclusion has now come to be - 65 lakh voters

J Kant: That will be determined by facts and figures.

Sibal: In one small constituency, there are 12 people who are shown to be alive when they are dead. There are others who are dead who are shown to be alive. BLO hasn't done any exercise. WHAT ARE THE BLOs DOING?

J Kant (to ECI): We are going to need some facts and figures

Dwivedi: this is a draft roll. We have given notice that please submit your objections, correction applications. Some defects are bound to be there.

#SupremeCourt #BiharSIR

@pbhushan1 @KapilSibal Dwivedi: About person being dead/alive...they can move an application and seek correction

Sibal: Wife is saying they (ECI) were told (about person being alive/dead). It's all on video!

#SupremeCourt #BiharSIR

Sibal: Where the roll is to be intensively revised for any year, then it shall be prepared afresh in terms of...

J Kant: So only difference is Rule 4(2) won't apply in case of summary revision

Sibal: No letters, or Form 4 sent [to occupants of dwelling houses] as per Rules. No documents taken. Please see Rule 10 (publication of roll in draft form).

#SupremeCourt #BiharSIR

Sibal: please see Form 5. This is a notice he has to put up. Kindly come to Rule 12...every claim for inclusion of name in the roll as new voter shall be in form 6 and signed by the applicant. Please see the Form. It says Aadhaar details. That's the requirement for an intensive exercise. Self-attested copy of age proof, document for proof of date of birth - item 2 is Aadhaar - which they have excluded. If none available, please specify DOB and ordinary residence are the only requirements.

#SupremeCourt #BiharSIR

Sibal: None of this done. Now kindly come back to the Rule

J Kant: None of this done means what?

Sibal: They're not accepting Aadhaar, if I say I'm citizen, burden is on them - but none of this has happened. It says only info is to be given

Sibal refers to Rule 13 (every objection to proposed inclusion of name shall be in form 7 and preferred by some person whose name is in the roll...): Please see Form 7 and you'll see where the problem is.

#SupremeCourt #BiharSIR

Sibal (argues based on Rules): I don't have to prove anything. Person who is objecting to my inclusion has to prove.

#SupremeCourt #BiharSIR

Sibal: Where is the exercise?

J Bagchi: This is with regard to objections to errors in draft rolls. rule 10 is for preparation of draft roll...

Sibal: Somebody has to object that I should be deleted. It's not a power with the BLO

J Bagchi: If draft roll does not include a voter's name who claims to be citizen, he comes out with appl in form 6 and include my name. It's upon authority to show he was not Indian citizen. All rules preceding 10 are preparatory steps for draft roll - whether ECI has issued through BLOs requisite form 4 is something which you are raising - that this exercise was not undertaken and therefore roll is not in compliance.

#SupremeCourt #BiharSIR

@pbhushan1 @KapilSibal Bench to assembly after lunch break.

#SupremeCourt #BiharSIR

@pbhushan1 @KapilSibal Bench re-assembles

#SupremeCourt #BiharSIR

Sibal: J Bagchi mentioned that at the stage of form 4, this is the requirement...4 is the draft...if I am excluded and want to be included, I fill form 6

J Bagchi: on the basis of these reports, the BLO prepares a draft roll in terms of rule 10

Sibal: Please see form 4, what they require from me. Names and particulars - name of citizen, particulars of father/mother/husband, age, signature.

#SupremeCourt #BiharSIR

Sibal: what have they asked in enumeration form? None of this. Look at the enumeration form, which they say they have asked people to fill. This has nothing to do with Form 4. Entire exercise is contrary to law, they have no power to do this

#SupremeCourt #BiharSIR

J Kant: where does the form say that all documents should be there?

Sibal: Basic thing is missing

J Kant: Is it truth or apprehension - let's see. Idea is to facilitate...we will come to Aadhaar card. It says 'From the list given below'...it's not necessary that you have to give all documents

Sibal: Bihar people don't have these documents, that's the point

#BiharSIR

J Kant: Bihar is part of India. If Bihar does not have, other states also won't. Which documents are these? If there's central govt employee, any identity card/document issued by local/LIC

Sibal: They are saying it can't be ascertained. Come to birth certificate - only 3.056% have it. Passport - 2.7%...14.71 have matriculation certificate...

J Kant: there must be something to prove that you're citizen of India...everybody possesses [...] certificate, you need it to buy SIM. OBC/SC/ST certificate...

Sibal: Just see what's happening

J Kant: very sweeping argument that in Bihar, nobody possesses these documents. Aadhaar and ration card they have?

Sibal: Yes, but they are not accepting it! They say I will not accept Aadhaar as proof of anything

J Kant: These documents would bonafide show you're resident of that area...initial burden shifts from you to them...then they have to verify if your card is genuine. Give them document and let them verify.

#SupremeCourt #BiharSIR

@pbhushan1 @KapilSibal Sibal: Aadhaar, ration, EPIC cards not accepted

J Kant: They're right in saying they can't be accepted as conclusive proof. Under notification, what's the procedure provided when you submit these documents?

#SupremeCourt #BiharSIR

Sibal: they're excluding those in 2003 from any document being supplied. these are rolls of 2025

Judges discuss

J Kant: we are asking if you're challenging the very process, then you are questioning the cut-off date. Then let's come to whether ECI has such power...if it is held ECI does not have the power, then matter ends

Sibal: That's right. But they also say that if I was in 2003 roll, and I have not filed enumeration form, I will be excluded. I have objection to that also

J Bagchi: Rule 12 says if you're not in 2003 roll, then you have to give documents.

#SupremeCourt #BiharSIR

Sibal disagrees

Sibal (reads ECI guidelines): draft electoral roll shall contain name of all electors who have filed enumeration forms...names of those who have not submitted forms shall not be included. 2003 is therefore relevant only for documents. after 2003, every year, electoral roll is updated. they have the updated electoral roll

J Kant: If 2025 roll is there, then why SIR?

#BiharSIR

Sibal: That's our argument. Crores likely to be excluded. October is the election, why should they do it? They say in their counter they didn't do an enquiry. 7.9 crores voters in total...they say 7.24 crores have furnished forms...22 lakhs dead (this is without enquiry)...7 lakhs already enrolled...

J Kant: That means 7.24 crores are alive. 22 lakhs dead. Where are those crores who you say...

Sibal: 4.96 crores are part of 2003 roll...we are left with 4 point something.

J Kant: So, 7.46 crores...how many have shifted out of Bihar?

Sibal: they say 36 lakhs...7 lakhs enrolled in other states...this is how it comes to 65 lakhs

J Kant: 7.24 crores respond...out of 65 lakhs, 22 lakhs dead, so there can't be any problem...36 lakhs shifted...7 enrolled...one gray area according to you is the shifted population...

#BiharSIR

J Bagchi: Intensive survey purpose is to see if dead persons find place in 2025 roll, There is a degree of intensity in a summary revision vis-a-vis...inclusion in summary roll does not give you carte blanche to be included in [intensive] roll

J Kant: These draft rolls - to whom these lists are supplied? SoP says they are to be supplied to political parties. Draft roll, probably you should agree with them. In SIR also, Form 4 is required? WHO IS WANTING THIS ROVING ENQUIRY? Today if I supply forged Aadhaar, they have right to verify, right?

Sibal: They must tell us what forms/documents have been submitted

J Kant: Let's see who is entitled to received that information and says he has not received.

Adv Prashant Bhushan (for ADR): They have nowhere stated that this is the list of those 65 lakhs people and out of 65 lakhs people, these are who are dead and these are those who have shifted...they have filed a reply saying that they are not required to give...

Dwivedi: Complete false statement, we have given to BLO...Court being misled.

Bhushan: What they have done is mischievous. Draft roll was searchable earlier. But after 4 August, they have removed this feature! They are saying you go and ask agents of recognized political parties. Why should I ask? Why should I as an elector of Bihar have to go to a political party?

J Kant: Voters have a right, no difficulty. Those who claim to be bonafide citizens, they would have a right to know.

Bhushan: ECI has that information of exact breakup. they are saying we are not obliged to give to you. not that they don't have info. More shocking - the BLOs of ECI have written 'recommended/not recommended' and we have been able to get a list of these through a whistleblower with respect to 2 districts - what we have found is shocking - 10-12% voters not recommended among those who have filled forms! what's the basis!? Never before in the history of this country has the ECI done such SIR.

#BiharSIR

Dwivedi: 4.96 crores were already there in 2003 roll...some may have died out of that...not only those who are alive do not have to file, but even their progeny are required to only show that their parents are in the list

J Kant: suppose A is a voter in 2003, he is alive, and he was 20 yrs old at that time...his children are 18 yrs and above - they have to show documents?

Dwivedi: No. Approx. 6.5 crores people may not have to file documents.

J Kant: About dead persons, that's a verifiable fact

Bhushan: They are saying those who are not in draft roll will have to fill a fresh form. Form 6 says I only have to give self-declaration of citizenship. They don't have to give any document. Now they have said that alongwith Form 6...

J Kant: Accepting only self-declaration may be difficult

#BiharSIR

Dwivedi: This is all on speculation. Please wait for us to complete

J Kant: largely it's a case of trust deficiency

Dwivedi: No political party or voter is before the Court. it's ADR, sitting in Delhi

A counsel: In 2003, they took 2 yrs time for the exercise...I am directly involved in this process...

Adv Vrinda Grover (for petitioners): Please see s.28 of RP Act...power to make rules vests in Central govt...this exercise is unlawful, ultra vires...usurping Parliament's power.

@pbhushan1 @KapilSibal Grover: ECI is trespassing into the domain of Parliament

J Kant: You're challenging the initiation of the process. Are we concerned with the procedure or the initiation is what we have been asking.

@pbhushan1 @KapilSibal Clarification: Dwivedi said that as per the SoP, lists at booth level have been given to booth level agents of political parties.

#BiharSIR

Grover: Enumeration form is mandatory according to them. Form 6 is the one that is used. Enumeration form, particularly the list of 11 documents, has passed Parliamentary scrutiny. Where does the ECI derive the power? This is an ultra vires exercise. These rules have not been passed by the Parliament. How did these 11 documents come to be?

#BiharSIR

J Kant: In the 2 forms Mr Sibal referred to, there's specific clause referring to Aadhaar card

Grover: the range of documents is accommodating...the rule-making power has been flouted by this [ECI]...art 324 does authorize ECI, but it has to be read harmoniously...rule 25 and statutory scheme is inclusive...I am representing two activists/voters of Bihar...some migrant workers in Delhi have not been able to give enumeration forms...these are part of 65 lakh voters

Singhvi: I am on triple test for interim relief.

#BiharSIR

Singhvi: Why is there resistance to consider Aadhaar and EPIC? Very clear that ECI does not want to look at them because they say it's insufficient for determining citizenship. Otherwise, there's no reason

J Kant: They don't say, the Aadhaar Act says that

Singhvi: They say in counter...entire exercise is without jurisdiction...determination of citizenship is an exercise which does not fall in domain of EC...they can't say before 2 months of election that we are doing SIR and we will remove...removal of people on ground of citizenship has to follow a procedure. The argument is - from 2003-2025, there is presumptive exclusion unless EC finds that these people...according to their test, one has to prove citizenship.

Singhvi: Electoral roll is presumptively held not to be valid solely on ground of citizenship. You cannot have a system where citizenship is doubted for 5 crore people unless...presumption is he's a valid citizen unless they follow procedure and remove...

J Kant: Upto 2003, there's no dispute. Those who are on voter list, they are not required to submit any document. Mr Dwivedi is saying those who were voters till 2003, their children also are not required to give documents

Singhvi: When elections are 2.5 months away, what they have done is- they have issued a presumptive negative declaration...and said that to become valid on existing roll on which you are sitting, these people...I am only on the presumption in a squeezed time frame. Look at the object of all this. You declare 5 crore people to be not valid and give them 2.5 months!

J Kant: If they declare 5 crore people invalid, we are sitting here

#SupremeCourt #BiharSIR

J Kant reiterates that entire thing can be set aside even if illegality is established in as late as September

J Kant: law on citizenship has to be by Parliament. but once that law has been made...

Singhvi: Those on the rolls can't be dealt with negative presumption. this case deserves interim intervention.

#SupremeCourt #BiharSIR

@pbhushan1 @KapilSibal Singhvi: they reversed the entire system of revising the rolls. In the guise of revising, they're doing an exercise reversing burden of proving citizenship.

#SupremeCourt #BiharSIR

@pbhushan1 @KapilSibal Singhvi: Summary revision of rolls happened 8-10 months ago, now ECI wants to do intensive revision in 2.5 months. this much time can't be enough for 5 crore people.

#SupremeCourt #BiharSIR

@pbhushan1 @KapilSibal Singhvi: these are people who have already voted in 5-7-8 elections! if the opportunity of hearing person challenging deletion of his name has to be effective [time is required]...very similar factual situation was there in Lal Babu Hussein case, which has stood the test of time.

Singhvi reads the following from the judgment:

"This is evident from the fact that the police refused to accept any other document and prepared stereotype reports which betray non-application of mind and the Electoral Registration Officers abdicated their functions and merely super added their seals to such reports. This, notwithstanding the fact that these persons were voters in previous elections and hence it would ordinarily appear that their cases were verified before their names were entered in the electoral rolls. That is because it may be presumed that official acts performed under the provisions of the 1950 Act or the 1960 Rules were regularly done. Their names were already on the rolls and since they were sought to be removed by undertaking a special revision, whether intensive or otherwise, the procedure for removal had to be followed."

#SupremeCourt #BiharSIR

Singhvi: EC is forgetting that I have voted in 5-10 elections already. Just note how in 2004 EC guidelines...it's a very unique thing they are doing in Bihar, contrary to their own guidelines...they are swearing by this Lal Babu Hussein...this is directly contrary to the judgment.

Singhvi (reads): "any person whose name is not recorded in the 2003 electoral roll, can for the purpose of registration in electoral rolls, is required to submit...for establishing their eligibility to be an elector". I, who has been voter since years, must produce documents! De-facto deletion without following rules. Non-inclusion is a very clever word used for deletion.

#BiharSIR

Singhvi: Tribunals are not there in all states...it can't be that Assam (which has the Tribunal) has principle of natural justice, but in Bihar there's all kind of unnatural injustice

Yogendra Yadav appears to make submissions: Mass exclusion has begun. Exclusion is much more than 65 lakhs. It's bound to increase with SIR. It's not failure of implementation of SIR, it's a design. Consequences will be same wherever SIR is undertaken

J Kant: We can sit for another 10 mins.

#SupremeCourt #BiharSIR

Yadav: Completeness, accuracy and equity are the tests for electoral rolls...on all 3 counts, SIR has failed and has been counter-productive. I want to suggest that we should not begin by looking at 7.9 crores. We should see what's percentage of adults eligible to vote. On this count, India is one of the best countries in the world. 99% compared to some of the best - Germany, Japan...US is only 74% (that many persons make it to voter list)...wherever onus is shifted from state to citizen, you will atleast miss out one quarter...most of these would be marginalized. Bihar is at 97%. Bihar is slightly deflated. With one stroke, Bihar has come down to 88% already. There would be further deletions now.

#BiharSIR

J Kant: Do we have any analysis of earlier SIR?

Yadav: There was no SIR in 2003...it was IR...there is no comparison between that and this one...never in the history of this country has any revision ever asked all people to submit a form. Never has such revision exercise asked everyone to submit a document. NEVER. In 2003, electoral rolls were being computerized. They gave printout to electoral officers. It had 2 rows. They were to go house-to-house. No form was asked. No document was asked. Intensive revision is a good exercise. 2 things added in SIR are - requirement of form and presumption of citizenship. These are illegal. I would urge ECI to supply a document not in public domain. Can EC supply 2003 order of intensive revision of 2003? It's not available.

Yadav: ECI may please tell me what was special about 2003. We start not with 7.96, but with 8.18 crores. Step 1 is what is the current adult population of Bihar - it's 8.18 crores (GoI statistic). this does not suffer from death/migration issue...it's census-based...electoral roll of Bihar had 7.9 crores...so there was deficit of 29 lakhs to begin with. There would be deletions/mistakes...but it's EC's duty and right to correct...it's the first exercise in the history of India where revision has taken place with 0 addition! Every single revision has involved some addition.

J Kant: Suppose there are some bogus voters, can't IR/SIR be for their deletion? Duty should be both sides.

Yadav: They did not find even a single person who should be added? This exercise was for intensive deletion, not revision. They say we can fill form 6. But when you came to my house, you only looked for deletions. Step 3 is this 65 lakhs which have gone. What happened to genuine additions? They've introduced a new thing called - 'not recommended'. Within 7.24 crores, there's a category whose number no one seems to know- with one click, for 2 districts...on what basis was someone not recommended? Why are they not sharing data with the Court? ECI claimed 4.96 crores were already in 2003 roll...actual figure is approx. 2.5 crores. I could be wrong, they can correct me.

Yadav: It's wrong to say children whose parents' names are there in 2003 rolls don't have to submit documents...I have never heard of legal orders being changed through press releases. ECI changes orders with press releases! One critical point with respect to timeline - according to EC, all forms will have to be scrutinized. They have time limit. The magic figure is - every ERO will scrutinize 4000 plus forms every day, while also handling doubts, floods, etc.

Yadav: Where is my first appeal? On 30.09.2025 electoral rolls will be frozen and on 25.09.2025, EC will tell me my name has been deleted. If I want to contest in Bihar? What would I do? I will file appeal, by the time I do, electoral rolls will be frozen. Bye-bye, see you after 5 yrs. We have confirmed evidence that women are in much more deletion than men. 31 lakh women names have been deleted. If migration and deaths are reasons, women don't migrate...death rate is higher for...shows anti-women bias. We are witnessing perhaps the largest exercise of disenfranchisement in the history of the world. Entire figure will cross 1 crore. We will break record of US in 19th century. This is a tectonic shift in universal adult franchise.

#BiharSIR

@pbhushan1 @KapilSibal Yadav: This case would decide history of this country

Yadav points to 2 persons produced in Court saying they have been declared dead

Yadav: They have EPIC card...my only question is...

Dwivedi: This drama...

J Bagchi: These may be inadvertent errors, can be corrected

Dwivedi: Mr Yadav can upload her name, instead of this drama

J Kant: We are proud of our citizens, that they are in SC

Dwivedi: WE ARE CONDUCTING A PURIFICATION EXCERCISE. INSTEAD OF TRYING TO STALL, HELP US.

J Kant: Some factual issues raised by Mr Yadav...

Dwivedi: Will respond.

@pbhushan1 @KapilSibal J Kant: Some issues require remedial measures...if you have taken, very well. If not, we will see. Thank you Mr Yadav, you have given excellent analysis. Thank you for your assistance

Hearing to continue tomorrow.

#BiharSIR