The Supreme Court resumed hearing ADR-led petitions challenging the Special Intensive Revision of electoral rolls in Bihar, focusing on the limits of the Election Commission’s powers. The Bench examined whether the SIR process violates constitutional principles of manifest arbitrariness and voter rights.
New Delhi: The Supreme Court heard a batch of petitions led by the Association for Democratic Reforms (ADR) challenging the Special Intensive Revision (SIR) of electoral rolls being undertaken in Bihar by the Election Commission of India (ECI).
The petitions raise serious concerns about due process, the scope of the Election Commission’s powers, and the possible impact of the exercise on voters’ rights.
The Bench comprises the Hon’ble the Chief Justice of India and Hon’ble Justice Joymalya Bagchi. Senior Advocate Rakesh Dwivedi is appearing for the Election Commission of India.
At the outset of his submissions, Senior Advocate Rakesh continued from the previous day and explained the statutory framework under the Representation of the People Act, 1950. He stated:
“Focusing on section 3 in which we were discussing yesterday. Section 21(1) of the RP Act 1950 relates to the first preparation of the electoral roll on the basis of which the elections were held for the first time after enforcement of the Constitution of India.
-Section 21(2) relates to revision of this said roll. It would apply to all revisions which take place after the first preparation of the electoral roll.
-Section 21(2) deploys the expression unless otherwise directed. In section 21(2)(a), it has no application to section 21(2)(b).”
He then traced the legislative history of Section 21 and argued that the discretion now claimed by the ECI was not originally part of the statute. He submitted:
“The 1956 Amendment Act did not introduce any expression in 21(2)(a) in favor of the ECI. Until the Amendment Act 1966, the expression unless otherwise directed was not mentioned in section 21(2). In fact, section 21(2) was even changed by Amendment Act 1966 for the first time by the Amendment Act 1966 unless otherwise was inserted in section 21(2) as it now stands.”
Referring to past precedent, Senior Advocate Rakesh relied on a Constitution Bench decision to show that the ECI has limited discretion even under Section 21(2)(a). He told the Court:
” Your Lordship will note that in the case of Indrajit Singh Barua, which I cited, Your Lordships have in a constitution bench upheld the direction of the ECI that there will be no revision and election will be held as per 1979, and it was upheld under the main part of 21(2)(A). So there is some discretion there also, but keeping in mind the rules, etc., which is there, you may deviate.”
He then explained the special nature of Section 21(3) of the Act and the breadth of powers it gives to the Election Commission. According to him:
“The object of Section 21(3) is to override 21(2) by deployment of non-obstante clause and to enable the ECI to direct a special revision of the electoral roll in such manner as it may think fit. What the ECI chooses is not simply the intensity of the revision.”
Expanding on this, he clarified that the authority for such special revision flows directly from the Constitution and not from delegated legislation. He stated:
“By virtue of Section 21(3), the manner of division is to be fixed by ECI in the exercise of power under Article 324 of the Constitution of India and not under Section 28 of the RP Act, that is, the rule-making power.”
Senior Advocate Rakesh strongly opposed the petitioners’ attempt to bring certain rules into play to limit the Commission’s discretion. He argued:
“The petitioner’s effort to bring Rule 25(2) into play with respect to an SIR under Section 21(3), because of the division being intensive, and in consequence bringing Section 21(1) as well as Rule 423 to application, is a convoluted submission which introduces absurdity and results in destruction of ECI’s discretion under Section 21(3).”
He further submitted that Parliament has imposed only minimal checks on the Commission’s power while ordering a special revision. According to him:
“The Parliament has only imposed the restriction of recording the reasons for directing special revision. The reasons are only to explain the need for deviating from the prescribed rules to achieve the objective of revision of the electoral roll. Consequently, it is permissible for the ECI to provide for additional set of documents or set of documents different from those specified in form 6”
Continuing his argument, he remarked:
“Now, this proposition is not a duty submission and negates the idea which my learned friend wanted to, because once you extend from one to a clutch, now whose clutch and how?”
He also argued that the non-obstante clause in Section 21(3) indicates that a special revision need not necessarily cover all constituencies. He submitted:
“The existence of non-obstantive clause rules out coverage of all the constituencies. It was said that never before in the past an SIR was conducted in all the states.”
Referring specifically to the impugned SIR order dated 24 June 2025, Senior Advocate Rakesh submitted that the Election Commission had clearly recorded reasons for initiating the exercise. He said:
“It is submitted that the SIR order dated 24th June 25 sets out the reasons for undertaking special revision of electoral rolls.
1.there has been rapid urbanization.
2. there has been frequent migration of population due to education, livelihood and other reasons,”
He added that political parties themselves had raised concerns about inaccuracies in the voter lists, stating:
“5. political parties across the spectrum have voiced serious concerns regarding the accuracy of electoral rolls revised through summary revision process.”
At this stage, Justice Joymalya Bagchi raised a pointed question on timing and legislative intent, observing:
“there is no contemporaneity between the enforcement of the amendment and the notification for special division in 2025”
Justice Bagchi further questioned the underlying trigger for examining citizenship during the SIR exercise and remarked:
“That’s the question I am posing to you. Was the requirement of examination of citizenship in light of the amendments to the Citizenship Act, it triggered, because that trigger does not find eloquent expression in the SI.”
He added:
“Your essay does not pinpoint that that it is cross-border migration or illegal migration.”
Responding to this, Senior Advocate Rakesh stated:
“When We talk of inter-country migration, it may amount to illegal migration. Because in India, everyone is entitled to, if it is a citizen, to move throughout the country because of fundamental freedoms.”
Justice Bagchi, however, remained unconvinced and responded:
“If you are striking a special revision, was that in your mind? What was in your mind, says migration, says advertisement, etc., etc.? It does not clearly say illegal immigration.:”
The discussion then turned to the citizenship requirements under law. Justice Bagchi clarified the legal position by stating:
“says both parents citizen, then see clause B, one parent citizen and one is not an illegal migrant. It is not necessary that both parents required to be citizens. If one is a citizen and one is a lawful migrant, then also you’re a citizen. So it’s not that I have to show, if I am born after 2003, that both my parents are Indians. I have to show that one of my parents is an Indian and another is not an illegal migrant.”
Senior Advocate Rakesh responded by highlighting the significance of changes in citizenship law:
“In the case of a foreign national entering India with a visa, giving birth, entitled to a citizenship. So this was a very vital change.”
He went on to submit that the Commission believed it was time to re-examine citizenship issues under the Constitution. He said:
“So I am putting it like this, that what was in the mind of the commission was that it’s time to examine citizenship under 326. That is well taken, two decades have lost. And it’s a well known fact, lots of this case from Assam has come twice and all that”
Addressing concerns about house-to-house surveys and the absence of manuals, Senior Advocate Rakesh argued that such administrative instructions cannot restrict statutory powers. He submitted:
“Another point raised concerned the house-to-house survey and the absence of the manual in certain contexts. However, it is submitted that while Section 21(3) empowers the Election Commission of India (ECI) to deviate from prescribed rules, this discretion is not limited or constrained by administrative directions set out in any manual.”
He then turned to the larger constitutional debate on due process and arbitrariness. He stated, with a touch of humour:
“(submission,) Lord. I have no issues with the Maneka Gandhi principle, Lord, which says just bearing. And that has been followed. But the problem I have serious problems with this due process, which we, Mr. Singvi wants to import from the United States at a time. (witty) Now, my Lord, President Trump can just go and lift the president of Venezuela and bring him to the U.S. for trial. So where is the due process? You will get whatever you want.”
The Chief Justice then observed:
“Mr. Nariman and I think the idea is also there that we applied this principle of manifest arbitrariness in the subsequent judgment where we struck down some provisions of the Arbitration Act.”
In response, Senior Advocate Rakesh clarified his position:
“There is no question of due process, but manifest arbitration principle I will follow. Yes, I accept that. I am only questioning, please don’t run and make it clear that due process as in American judgments is not applicable here.”
He added:
“Arbitrariness is another expression of substantive due process”
Justice Bagchi then referred to a line of Supreme Court judgments expanding the scope of judicial review and remarked:
‘”In Sahara Banu, Joseph’s sign, and the series of judgments from 2010 onwards, Supreme Court elevated the judicial review test of manifest arbitrariness not only to delegated legislation, administrative action, but also to primary legislation.”
The Chief Justice concluded this part of the hearing by cautioning against loosely borrowing foreign constitutional concepts, observing:
“expression ‘due process’ has been used sometimes by the Courts without realising that it is borrowing from the USA.”
Senior Advocate Rakesh wrapped up this segment by emphasising the Indian constitutional framework and stated:
“Evidently, due process was substituted with the expression procedure established by law. Liberty was qualified by personal.”
Justice Joymalya Bagchi further enriched the constitutional discussion by tracing the intellectual roots of the doctrine of manifest arbitrariness in Indian constitutional law. He observed:
” first idea of manifest arbitrariness comes in the minority view of Vivian Bose in the Saurashtra cases. Anwar Ali Sarkar is struck down by saying it is an unconstitutional. Then in the Saurashtra cases, the majority, however, upholds the view, not agreed by Justice Bose, and Justice Bose says that if a law, if my memory serves me right, if a law imposes punishment for persons who are red-haired, will that law survive? That is manifest arbitrariness. It’s a beautiful case.”
Building on this judicial reflection, Senior Advocate Rakesh Dwivedi submitted that the present case provides an important opportunity for the Court to clearly define the contours of the doctrine. He stated:
“This is very important for the first time, my lord, because manifest arbitrariness has to be explained. When do you say it is manifest and when it is not manifest? What is the extent of arbitrariness? Constituents of manifest arbitrariness.
-The test of manifest arbitrariness itself was crystallized in the authoritative precedent set out in Shah Bano, where this court dealt with the challenge to the practice of triple talaq. As recognized in the Muslim personal law, in that case, this court overruled its judgment in State of AP v. McDowell, 219.
-Thus, the test of manifest arbitrariness set out, manifest arbitrariness therefore must be something done by the legislature irrationally, and or without adequate determining principle.”
He further clarified the high threshold required to invoke the doctrine, emphasizing:
“The standard of “manifest” underscores that arbitrariness must be visible and unmistakable, particularly in bright-line rules where rigid thresholds can create theoretical inequities. “
Senior Advocate Rakesh also underlined that the Indian constitutional approach consciously departs from American notions of substantive due process, noting:
“This test, as applied in India, diverges from American substantive due process by emphasizing proportionality, public interest, and constitutional alignment over abstract notions of individual liberty.”
Senior Advocate Rakesh Dwivedi also addressed concerns raised about transparency and publication of data during the Special Intensive Revision exercise. He informed the Court that whenever discrepancies were pointed out, corrective steps were taken and placed in the public domain.
He submitted:
“Now, when this logical discrepancy arose in Bengal, Honorable Your Lordship asked that also to be published, we published that. As far as the earlier directions are concerned, regarding how many have died, how many duplicates, all of them published in other states also. And there is so far no grievance on that score in the other states. “
He further argued that allegations of voter exclusion were not borne out by facts on the ground, even in Bihar where concerns were most strongly raised. Emphasising this, he stated:
“When this company, who is a member of parliament, comes forward and says, people don’t have. And ultimately, my lord, all the remaining 24% who were not linked in Bihar, they were able to file them. No voter has come. This is very important, to which I will come finally, that this being the position with regard to, I humbly submit, my lord, that our SIR cannot be castigated as being manifestly arbitrary, applying the test as elaborated by, my lord, the Chief Justice in this section 6A.”
Senior Advocate Rakesh Dwivedi then relied on a Constitution Bench judgment from 1985 to underline the legal position on electoral rolls and individual rights. Referring to the decision in Lakshmi Charan, he submitted:
“you have this case of 1985, four Constitutional bench judgment in Lakshmi Charan in the context of electoral rolls. 1985, volume 4 SCC, 689. Mainly at paragraph 3, the voters had come themselves before the court. Then have paragraph 6. In fact, paragraph 5 also, they pointed out irregularities and some defects and difficulties the polling booth was being.'”
He emphasized that the judgment clearly establishes who can raise grievances relating to electoral rolls and in what manner. Stressing this principle, he stated:
“The right to be included in the electoral roll or to challenge the inclusion of any name in the roll is a right conferred upon an individual and not upon any political party”
Through these submissions, Senior Advocate Rakesh argued that challenges to electoral roll revisions must be grounded in concrete grievances raised by affected voters themselves, and not merely on broad or abstract claims advanced by third parties.
These arguments were addressed to the Bench of the Supreme Court of India as part of the ongoing scrutiny of the Special Intensive Revision exercise.
Case Title:
Association for Democratic Reforms and Ors. versus Election Commission of India,
W.P.(C) No. 640/2025 (PIL-W)
