A regime of suspicion

The Hindu

07-07-2025

In 1994, residents of Greater Bombay in Maharashtra and those of Paharganj and Matia Mahal in Delhi found their names deleted from the electoral rolls. The apparent reason was the respective electoral registration officers' suspicion that they were non-citizens and therefore ineligible to vote. When the matter reached the Supreme Court, a three-judge Bench said such suspicion must be based on material evidence, which ought to have been furnished to the voters whose names were being deleted, along with an opportunity to be heard.
Most important, in its 1995 judgment in Lal Babu Hussein, the Supreme Court held that if the names of such persons were included on the electoral rolls in the previous election, it would ordinarily imply that due verification had taken place prior to their inclusion. This presumption arose from the court's trust that official acts carried out under provisions of the Representation of the People Act, 1950 and the Registration of Electors Rules, 1960 were regularly performed.
The 1994 instance was a limited malaise, targeting approximately 1.67 lakh individuals in specific pockets of Greater Bombay and a few polling stations in Delhi. Thirty-one years later, the Election Commission appears to be re-enacting this practice, but on a different scale in Bihar, just ahead of the Assembly election. The commission's order dated June 24, 2025 mandates that all voters enrolled after 2003 submit proof of Indian citizenship, without any specific allegation or evidence of impropriety. Even more discomforting is that the justification offered is not suspicion of infiltration or fraud but merely that 'significant change in electoral rolls has taken place' over the past two decades.
Upon widespread criticism of the move, while the Election Commission has emphasised that individuals whose names were included on the 2003 electoral rolls would only need to submit an extract thereof, the reality is that a significant number of voters were enrolled after 2003. These individuals are now being asked to submit proof of their birth in India. Moreover, anyone born after 1987 is required to furnish proof of their parents' citizenship as well. For example, a person born in the 1990s would not have been included on the 2003 electoral rolls, but may have been included on subsequent rolls. Even such a person would now be required to submit proof of citizenship as his previous inclusion is being ignored.
In effect, the Election Commission is undermining its own electoral rolls and elector photo identity cards (EPICs) issued since 2003 — documents that have been used in five Lok Sabha and as many Assembly elections in Bihar, not to mention multiple byelections. The implication is that these official records are no longer considered reliable by the very institution that created them. This institutional self-disavowal is not just bureaucratically absurd — it is unconstitutional in the same breath.
Moreover, the commission seems to have forgotten the fact that testing citizenship or requiring proof thereof is not within its statutory remit, making the entire exercise devoid of any statutory backing.
Equally alarming is the shifting of the burden of proof. Under the 1950 Act and the 1960 Rules, the standard requirement is a declaration of citizenship by the voter. However, the current exercise demands documentary proof of citizenship. This represents a fundamental departure from the law, and conveniently flips the burden of proof onto the voter.
In Lal Babu Hussein, the Supreme Court emphasised that material evidence and an opportunity to be heard must precede any move to question a person's citizenship. Here, however, the presumption is reversed: every voter is treated as a potential non-citizen unless proven otherwise.
This reversal is starkly evident in the commission's June 24 order, which states unambiguously that 'the EROs shall treat the electoral roll of 2003 with qualifying date of 01.01.2003 as probative evidence of eligibility, including presumption of citizenship, unless they receive any other input otherwise'.
This shift in burden is especially problematic because no such requirement exists in the Citizenship Act, 1955. Under Section 3, persons claiming citizenship by birth are not required to make any application or obtain certification to prove their citizenship — unlike those seeking citizenship by registration or naturalisation. The EC's order thus seems to import into the electoral process a regime of suspicion that even the citizenship law does not envisage.
Chilling effect
Another concerning aspect of this entire exercise — which demands herculean compliance in a very short span — is its likely chilling effect on voter participation. In a State like Bihar, which already witnesses low voter turnouts, an exercise like this, coupled with the threat that anyone suspected of being a foreigner will be referred to the competent authority under the Citizenship Act, 1955, will most severely affect the most marginalised and underprivileged.
Faced with the prospect of producing documents, engaging with bureaucracy, and being subject to the discretion of a booth-level officer, many may simply opt not to vote at all. Elections must empower citizens. But this exercise flips that ideal: instead of the state proving someone is ineligible to vote, the citizens must now prove they are eligible — a reversal that strikes at the very heart of universal adult franchise.
What is unfolding in Bihar can be a cause of concern for those outside Bihar as well. As the June 24 order makes it abundantly clear, the exercise is being undertaken in Bihar in view of the upcoming elections and is actually envisaged for the entire country. If such an exercise — with no statutory backing, no suspicion, and no individualised inquiry — is replicated at the national level, it will amount to mass disenfranchisement by non-inclusion of those failing to submit required documents and by non-participation in the exercise due to the chilling effect it creates. This will normalise distrust toward vast swathes of the population, especially the poor, minorities, and the marginalised — groups that historically have had to struggle for recognition in the democratic process.
That such a revision is taking place months before a State election, rather than during the regular annual summary revision cycle under Section 21 of the Representation of the People Act, 1950, only deepens concerns of constitutional violations and political intent.
The right to vote is a constitutional guarantee, a key facet of India's democratic framework and rooted in the principle of universal adult suffrage. It is not a privilege contingent on paperwork or pedigree, but a core mechanism through which citizens of all walks of life participate in governance and hold the state accountable.
Dangerous precedent
By imposing evidentiary burdens on millions of voters without specific allegations or due procedure, the Election Commission's actions in Bihar risk undermining decades of democratic progress. This exercise does not merely revise electoral rolls — it reshapes the relationship between the citizen and the state. It, therefore, sets a dangerous precedent.
It is this same exercise of doubting a voter's citizenship without any material that had resulted in the judgment in Lal Babu Hussein. It seems the Election Commission has now found a way to circle around the judgment by not alleging any individual voter to be non-citizen but rather presuming all persons to be potential non-citizens under the garb of an innocuous statement that it is merely revising the rolls and in doing so it must ensure that only citizens are included. This makes the elections in Bihar an example of conditional democracy and not a constitutional one.
(Fuzail Ahmad Ayyubi is an advocate-on-record practising at the Supreme Court; views are personal)