The Bihar voter list row raises concerns as a lack of valid citizenship proof questions the ECI’s credibility, exposing a legal void in the electoral process.
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NEW DELHI: The Election Commission of India’s (ECI) decision to undertake a special intensive revision of electoral rolls in Bihar has triggered a wave of legal and constitutional debates, particularly on the right to vote and the proof of Indian citizenship.
This move, which comes after over two decades, the last such revision was in 2003, has led to several petitions before the Supreme Court. The core of the controversy lies in the documents that the ECI has listed as acceptable for voter registration, excluding commonly used ones like Aadhaar and voter ID, while aiming to verify age and citizenship.
Article 326 of the Constitution guarantees the right to vote based on adult suffrage. According to this provision, every Indian citizen above the age of 18 is entitled to vote. However, the documents listed by the ECI to verify citizenship, such as birth certificates, passports, caste certificates, or family registers, have been criticised for not being definitive proof of citizenship.
Legal experts have pointed out that none of these documents, except the passport (and even that, only secondarily), serve as proof of citizenship under the Citizenship Act, 1955.
Importantly, India lacks a singular, universal document that certifies citizenship for those born in the country. The Citizenship Act, 1955, provides for citizenship by birth, descent, registration, and naturalisation, but certificates of citizenship are issued only to those acquiring it through registration or naturalisation, not to those who acquire it by birth.
Citizenship Proof in India
The Citizenship Act, 1955, governs citizens of India. It outlines four principal modes of acquiring citizenship: by birth, by descent, by registration, by naturalisation, and incorporation of territory. Each mode applies under different circumstances and is accompanied by varying legal procedures and documentation requirements.
Citizenship by birth applies to individuals born in India under conditions prescribed in the Act. Interestingly, for this most common form of citizenship, no specific application or certificate is issued, meaning there is no official document certifying a person’s citizenship status if acquired by birth.
Citizenship by descent, on the other hand, applies to individuals born outside India to Indian parents. This category, along with citizenship by registration (which covers persons of Indian origin or those married to Indian citizens) and citizenship by naturalisation (meant for foreign nationals fulfilling residency and other criteria), does involve a formal certificate of citizenship being issued by the Government of India.
As noted by lawyer Aman Wadud, this certificate, a formal document confirming Indian citizenship, is available only to those acquiring it through descent, registration, or naturalisation under Sections 4, 5, and 6 of the Act, or under the Citizenship (Amendment) Act.
The Citizenship Rules, 2009, prescribe the application processes for these specific categories. However, citizenship by birth, which accounts for a large majority of Indian citizens, does not involve any such application process or issuance of a citizenship certificate.
The Indian Constitution, under Part II (Articles 5 to 11), lays the foundational framework for citizenship, which is a subject under the Union List, thereby placing it under the exclusive legislative domain of Parliament.
Additionally, a birth certificate in India, issued under the Registration of Births and Deaths Act, 1969, not only serves as proof of age and identity but also acts as an important supporting document for establishing Indian citizenship, provided the birth is registered within 21 days of its occurrence.
Identity Documents, Not Citizenship Proofs
The Supreme Court recently raised concerns over the Election Commission of India’s (ECI) document list for its special revision of electoral rolls in Bihar, questioning whether the documents can prove citizenship.
The ECI had listed 11 acceptable documents, including birth certificates, passports, matriculation certificates, caste and residence certificates, NRC (where applicable), and government-issued IDs, but the Court noted that these are primarily identity documents, not citizenship proofs.
Justice Joymalya Bagchi remarked,
“Why citizenship? Only identity. None of these documents by themselves is proof of citizenship.”
Senior advocate Rakesh Dwivedi, representing the ECI, claimed the exercise aimed to confirm both age and citizenship of voters. However, the Court remained unconvinced, emphasizing the disconnect between the ECI’s objective and the nature of the documents.
Petitioners have challenged the move, calling it arbitrary and inconsistent, especially since commonly used documents like Aadhaar and voter ID cards are excluded. They argue that the ECI is overstepping its mandate by trying to verify citizenship, a function that legally falls under the Ministry of Home Affairs.
ALSO READ: Can Aadhaar Determine Citizenship? Supreme Court Debates ECI’s Voter Verification Methods
Aadhaar
The Election Commission of India (ECI) has shown a contradictory stance on the use of Aadhaar in electoral processes. While Aadhaar is currently being rejected in the Bihar voter roll revision for not proving citizenship, the ECI’s 2023 electoral roll manual lists it as a valid document for verifying age and residence, with Form 6 used during new registrations or constituency changes.
Earlier, in 2015, the ECI had launched the National Electoral Roll Purification and Authentication Programme (NERPAP) to link voter data with Aadhaar for cleaner rolls. However, the Supreme Court’s interim order that year restricted Aadhaar’s use to welfare schemes like PDS and LPG, prompting the ECI to suspend Aadhaar collection.
Yet in 2021, based on ECI’s suggestion, the government amended the Representation of People Act to introduce Form 6B, allowing Aadhaar submission voluntarily for voter record verification.
ECI’s Mandate
The voter roll revision in Bihar has sparked concerns that the Election Commission of India (ECI) is overstepping its role by trying to determine citizenship, something legally under the purview of the central government.
During a Supreme Court hearing, senior advocate Kapil Sibal, representing MP Manoj Kumar Jha, argued that only the Government of India, not local election officials, has the authority to question a person’s citizenship.
Constitutional expert P.D.T. Achary echoed this, stating that while the ECI is responsible for maintaining electoral rolls, it has no legal authority to verify citizenship, as the Representation of the People Act does not empower it to do so. That responsibility lies solely with the Ministry of Home Affairs under the Citizenship Act.
Achary noted that the ECI’s concern stems from Article 326, which requires voters to be citizens.
“ECI is thinking about this only because Article 326 stipulates citizenship as one of the conditions of eligibility, and its question is genuine. But I don’t know why they are thinking about it now, when all these years they have not been doing it. There is a presumption that a person is a citizen.”
The inclusions and exclusions
The Citizenship Act, 1955, is administered by the Ministry of Home Affairs (MHA), which is solely responsible for implementing its provisions and determining citizenship. During a Supreme Court hearing, when the ECI’s counsel argued that Aadhaar isn’t proof of citizenship, Justice Sudhanshu Dhulia firmly responded that citizenship is a matter for the MHA, not the Election Commission.
Former Election Commissioner Ashok Lavasa reinforced this, stating that each law, including the Citizenship Act, has its administrative mechanism, and the MHA alone is empowered to decide citizenship issues.
Constitutional expert P.D.T. Achary criticized the ECI’s exclusion of voter ID cards, questioning the logic of rejecting a document that the ECI itself issues after enrolling individuals under constitutional and legal procedures. If the voter ID isn’t accepted, he asked, what value does it hold?
Furthermore, petitions before the Court highlight that many people in Bihar do not possess key documents from the ECI’s approved list, such as birth certificates, passports, or residence certificates. Some listed documents, like the NRC and family register, don’t even apply to Bihar, making the exercise appear disconnected from the ground realities of the state.
Revision of Voter List
Section 21 of the Representation of the People Act, 1950 assigns the Election Commission the responsibility of preparing and updating electoral rolls for all parliamentary and assembly constituencies.
An electoral roll or voter list is the official register of all eligible voters in a constituency. It plays a vital role in ensuring free, fair, and transparent elections.
As per Section 16 of the Act, only Indian citizens can be included, explicitly excluding non-citizens. Section 19 permits the inclusion of every Indian citizen who is 18 years or older.
Voter rolls are usually updated before elections or after administrative actions like delimitation (redrawing of constituency boundaries). These updates fall into two categories,
- Intensive Revision:
Carried out when existing voter lists are outdated or inaccurate. It involves door-to-door verification to prepare a fresh list.
- Summary Revision:
Conducted annually, this involves publishing the existing list and inviting the public to request additions, deletions, or corrections.
- Special Intensive Revision:
A combination of both is undertaken in exceptional cases, such as large-scale errors, and is permitted under Section 21(3) of the Act. It has notably been used in Bihar.
What is the Need for Revision Of Voter Lists
Electoral roll revisions, whether intensive, summary, or special intensive, serve to remove ineligible voters, add those previously missed, and include newly eligible citizens. They also help account for migrant populations and shifting demographics.
Recently, the Election Commission removed 35 lakh names from the rolls. Of these, 12.5 lakh (1.59%) were deceased, 17.5 lakh (2.2%) had relocated, and 5.5 lakh (0.73%) were duplicate entries.
According to EC sources, this highlights the critical need for periodic voter list revisions to maintain accuracy and integrity in the electoral process.
Challenges:
A key challenge in revising electoral rolls is preventing the disenfranchisement of eligible voters, especially those from marginalised or economically weaker sections who may lack the necessary documents for re-verification.
Migrant populations, both inter- and intra-state, are particularly vulnerable. In Bihar, for instance, many adults migrate for work but retain voting rights in their native constituencies. Due to limited awareness and documentation, they often struggle to validate their eligibility.
Additionally, conducting a statewide revision demands considerable resources and manpower, placing strain on the Election Commission, especially when major elections are scheduled shortly afterward, as is currently the case in Bihar.
Bihar Voter List Row
Bihar’s special electoral roll revision has sparked controversy for two key reasons: it is taking place just months ahead of the state election, and the Election Commission has disallowed the use of commonly accepted government IDs, including Aadhaar and the voter ID, for re-verification.
The opposition, mainly the Congress and Rashtriya Janata Dal, has alleged that the timing and methods of the revision are a deliberate attempt to disenfranchise lakhs of voters, many of whom have voted in multiple elections since the last update. They have also questioned the legal validity of rejecting standard IDs.
In response, the ruling BJP-JD(U) alliance has accused the opposition of trying to protect ‘fake’ voters, citing reports of foreign nationals being on the rolls.
The Supreme Court, while refusing to stay the revision, expressed “serious doubts” about its timely completion and advised the Election Commission to consider accepting widely-used government IDs to ensure no genuine voter is excluded.
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