Bihar SIR| Supreme Court Refers To S.21(3) RP Act; Asks If ECI Doesn't Have Residual Power For Special Intensive Revision

The Supreme Court on Wednesday (August 13) asked the petitioners challenging the Election Commission's Special Intensive Revision (SIR) of Bihar's electoral rolls whether the ECI does not have the residual power to conduct such an exercise in a manner it deemed fit.

A bench of Justices Surya Kant and Joymalya Bagchi  in this context referred to Section 21(3) of the Representation of the Peoples Act, 1950, which says "the Election Commission may at any time, for reasons to be recorded, direct a special revision of the electoral roll for any constituency or part of a constituency in such manner as it may think fit."

The bench asked when the subordinate rules do not specify the manner in which the special revision has to be done, won't the ECI have a discretion to lay down its own procedure.

"When the primary legislation says 'in such manner as deemed it' but the subordinate legislation does not..., will it give a residual discretion to ECI to dovetail the procedure not completely in ignorance of rules but some more additives than what the rules prescribe to deal with the peculiar requirement of a special revision?" Justice Bagchi asked.

The query of the bench came in response to the submissions of Senior Advocate Gopal Sankaranarayanan, for the Association for Democratic Reforms, that the ECI has not been conferred with the power to do a "Special Intensive Revision." "We are not just challenging the procedure. we are challenging since inception. they could never do this! it's never been done. It's the first time in history. if this is permitted to happen, God knows where it will end," he submitted.

Justice Kant observed that Section 21(3) will become redundant if this argument is accepted. "If this can never be done, then sub-section (3) will become redundant."

Sankaranarayanan then submitted that Section 21(3) only allows revision of the electoral roll for "any constituency" or "for part of a constituency" and not to wipe out the rolls of an entire state for a fresh inclusion. If that is so, why can't the Bihar exercise be seen as an exercise for all constituencies of the State being carried out at the same time as per Section 21(3) power, asked Justice Bagchi.

Justice Bagchi said that the residuary power of the ECI flows from Article 324 of the Constitution as well. The RP Act mentions both summary revision and special revision and the ECI has only added the word "intensive", Justice Baghchi added.

Sankaranarayanan argued that as per Article 326, the right to be registered as a voter is a Constitutional right of every adult citizen of India. Justice Bagchi at this juncture commented that the ECI would be harping on Article 324, which confers it plenary powers for the conduct of elections and preparation of rolls. "It is a battle between a constitutional right and a constitutional power," Justice Bagchi commented.

The senior counsel argued that the right to vote of a person already included in the roll cannot be lightly taken away. The ECI cannot start with a presumption that the persons in the rolls are not citizens. The onus is on the ECI to show why they are not citizens, he argued, relying on the judgment in Lal Babu Hussain. Reference was also made to the Constitution Bench judgment in Anoop Baranwal which held that the right to vote is a Constitutional right.

He also contended that the ECI has defied the Supreme Court's July 10 order which directed them to consider Aadhaar, Ration and EPIC. Sankaranarayanan pressed for a stay of the SIR notification issued by the ECI.

Advocate Prashant Bhushan questioned why the ECI removed from its website the searchable version of the draft roll. He said that ECI did it on the very next day of Rahul Gandhi's press conference, alleging voter list manipulations. He also demanded that the ECI should publish the list of the 65 lakh voters who were omitted from the list and also the reasons for the omission. "They say they have exact reasons for deletion - why should they not be on the website? This shows mala fide intent," Bhushan submitted.

He sought an interim direction to the ECI to publish the names of persons excluded from the draft, to make the draft list on the website searchable, give names of persons recommended/not recommended by the BLO, and the reasons for deletion.

Earlier in the day, Senior Advocate Dr Abhishek Manu Singhvi (for PUCL, Lok Sabha MP Mahua Moitra and INDIA bloc), continuing from his arguments of yesterday, contended that the 11 documents specified by the ECI as acceptable for the SIR have very little coverage among the Bihar population. He questioned the exclusion of Aadhaar, EPIC, ration card, water and gas connection bills etc. from the list.

Singhvi also questioned the timing of the SIR, a few months ahead of the Bihar assembly elections. "No objection to SIR, but why months before election? Have it later, take a whole year..." Singhvi said. He referred to a 2004 notification of the ECI exempting Maharashtra and Arunachal Pradesh from electoral roll revision since the assembly elections were around the corner. Why the ECI is not following its own precedent, he asked.

The bench also briefly heard Senior Advocates Shadan Farasat, Kalyan Banerjee and PC Sen towards the end. It will hear the ECI's arguments tomorrow. Live updates from today's hearing can be followed here.

Yesterday, the bench heard arguments on behalf of the petitioners, put forth by Senior Advocate Kapil Sibal (for RJD MP Manoj Kumar Jha), Singhvi, Bhushan, Advocate Vrinda Grover and political activist Yogendra Yadav.

For a detailed background, click here.

Case Title: ASSOCIATION FOR DEMOCRATIC REFORMS AND ORS. Versus ELECTION COMMISSION OF INDIA, W.P.(C) No. 640/2025 (and connected cases)

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