Why the Bihar Electoral Roll Overhaul May Be Constitutionally Suspect

The SIR of the Bihar electorate is reminiscent of the CAA-NRC process conducted in Assam, writes Aurif Muzafar.

Terminology like “eligible voters” and “ineligible voters” in the Indian subcontinent is part of a highly complicated narrative rooted in history and the politics of partition.

(Photo: Kamran Akhter/The Quint)

Elections to the Bihar Assembly are scheduled for October and November this year. Against this backdrop, the Election Commission of India (ECI or Commission), a constitutional body established under Article 324 of the Constitution of India, has triggered a controversy by demanding a special roll revision of the state's electorate.

The purpose of the Special Intensive Revision (SIR) of the electoral rolls, as per ECI, is “to ensure that the names of all eligible citizens are included in the Electoral Roll (ER) so as to enable them to exercise their franchise.” ECI also seeks to prevent “ineligible voters” from inclusion in the electoral rolls. Various political parties, mostly from the Opposition, have opposed the electoral revision.

Citing reasons such as the disenfranchisement of the population in Bihar, the Opposition has also raised the issue of structural problems associated with the revision process.

While the Commission is constitutionally mandated to regulate the electoral rolls, the recent demand for the revision of the rolls raises significant constitutional questions.

Terminology like “eligible voters” and “ineligible voters” in the Indian subcontinent is part of a highly complicated narrative rooted in history and the politics of partition. For example, implementing such an exercise in a state like West Bengal can create thousands of so-called “ineligible voters”, making authoritarian rule a reality.

An Unreasonable Timeframe

The ECI has decided to publish the final electoral roll on 30 September 2025, before proceeding through various phases of scrutinising eligible voters. The time period is insufficient and can potentially exclude many vulnerable groups, including minorities and other underprivileged sections, from the final electoral roll. Citizens that the government disfavours can be deleted from the final roll.

The inclusion and exclusion of voters is also a question of procedural justice, and the current process is full of constraints. Instead of furthering the ends of participation, the action will likely restrain the citizens’ right to vote.

As is widely known, India’s institutions are overburdened with work and are hardly expected to carry out such a significant task in a small timeframe. Such an exercise is likely to exclude many people and strike at the heart of India’s equality clause.

A process that should have been started by the Commission a long time ahead of the election to prevent disenfranchisement has been started at the brink of the elections and will lead to unrest among the voters. The inability of migrant workers and other disadvantaged groups to meet the test set by the Commission to establish their right to vote could result in a loss of electoral citizenship.

The reversal of the burden of proof - normally a responsibility of the state agencies - on the citizens to prove their voting eligibility further risks the exclusion of people and the violation of the due process guarantee.

Systemic Hurdles: Citizen to Voter

India’s state apparatus is laden with complexities and bureaucratic hurdles. The SIR of the Bihar electorate is reminiscent of the Citizenship (Amendment) Act-National Register of Citizens (CAA-NRC) process conducted in Assam during the second half of the last decade.

The NRC, which threatened the citizenship of millions of Muslims, was aimed at distinguishing “non-citizens” from “genuine citizens”. The SIR is also meant to distinguish “eligible voters” from the so-called “ineligible voters”. There is no clear test on how a citizen can become an “ineligible voter.”

What are the consequences of a citizen being declared an ineligible voter? Does this mere act of declaration deem them as doubtful citizens? What happens to their legal status as citizens?

There are no clear answers to these questions, but given the modus operandi of the Indian state over the past few years, such individuals are likely to be detained and deported. Such actions also give legitimacy to the anti-Muslim discourse, making the minorities a permanently vulnerable population in the country.

When the final draft of the NRC was released in 2019, apart from labelling thousands of people “illegal immigrants”, the Election Commission also marked many people as “doubtful voters”, stripping them of their voting rights. Besides, one of the reasons given by the Commission for the conduct of SIR is the “inclusion of the names of foreign illegal immigrants” in the electoral rolls.

Many political commentators and scholars called the NRC a “botched up” process that ignored India’s systemic challenges. The process led to the mass deprivation of lakhs of citizens, deeming them “stateless” in their own country. It became a “bureaucratic nightmare” for people facing multiple steps in their verification as citizens. The SIR is similarly patterned and will comprise six phases in total. For a country where an overwhelming population is illiterate and poor, the loss of the right to vote is no exaggeration.

The people of Bihar have been asked to produce documents which are either inaccessible or irrelevant in terms of daily use.

Of the eleven documents, including passport, government salary slip, educational certificates, and domicile certificates referred to in the revision process, the Aadhaar card, the ration card or the election card is not mentioned. It is pertinent to state that the government has spent enormous resources on the Aadhaar system in the previous years and has made it practically mandatory to avail of government services. Therefore, a process that has the potential to turn against the marginalised is inherently discriminatory.

Legal Questions

Various groups and prominent individuals have filed petitions in the Supreme Court challenging the ECI's order demanding the revision of Bihar's electoral rolls. The petitions have cited violations of fundamental rights, including the right to equality, freedom of speech and expression, and the right to life.

The petitions have also sought restraint directions on the ECI from issuing similar orders in other states. The arguments of the petitioners are well-founded and rightly point out the violation of the Constitution by the ECI by ordering a massive revision at such short notice. As pointed out in one of the petitions, the ECI order is not only violative of fundamental rights but also has the potential of impacting religious minorities, Dalits and migrant workers.

The SIR in the present circumstances makes the voting process an exclusionary one where voting is a privilege, not a right. In the Indian context, universal adult suffrage was a radical decision that gave the right to vote to a vast population in India. Article 326 of the Indian Constitution, which provides the right to vote to every person above eighteen years of age, is a significant provision dealing with constitutional democracy in India.

Even though the provision provides specific grounds for disqualification, including non-residence, it does not sanction such blatant misuse of authority. It would also not be incorrect to question any potential political motives behind the move, as the appointment of the Chief Election Commissioner rests with the sitting government and there is always a chance of granting favours to individuals close to the government.

The ECI was established as an independent institution but the misuse of powers by the executive remains a fact attested by India's political history. The structural problems of India’s institutions are out in the open but it is essential to remember what Dr BR Ambedkar said on the institution's independence:

"The greatest safeguard for purity of election, for fairness in election, was to take away the matter from the hands of the executive authority and to hand it over to some independent authority."

Dr BR Ambedkar

It remains to be seen how far the executive can entrench its institutional (over)reach India and whether bodies like the Election Commission are able to impose checks and balances on an increasingly omnipotent executive.

(Aurif Muzafar is a lawyer and legal researcher based in Kashmir. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)