Bihar SIR: Supreme Court orders ECI to issue formal notice allowing Aadhaar as ID proof

The Supreme Court on Monday directed the Election Commission of India (ECI) to issue a formal notice stating that Aadhaar will be accepted as an identity proof document for the inclusion of a voter to the revised voters' list being prepared as part of the Special Intensive Revision (SIR) in Bihar.

A similar directive had earlier been issued only with respect to 65 lakh names proposed to be deleted from the voters' list. This directive has now been extended to other voters.

A Bench of Justices Surya Kant and Joymlaya Bagchi has expressly mentioned that Aadhaar with be the twelfth ID proof document, in addition to eleven other ID documents mentioned by the ECI for inclusion in the Bihar voters list.

The Court clarified that Aadhaar is only proof of residence and not citizenship, as also agreed to by all parties before it.

The ECI is also empowered to examine the genuineness of the Aadhaar cards being submitted to ensure that they are not forged, the Court added.

"Aadhaar card shall be accepted...for purpose of acceptance of inclusion or exclusion in revised list...Aadhaar card shall be treated as 12th document ...However, it is clarified that the authorities shall be entitled to verify the authenticity and genuineness of the Aadhaar card itself and Aadhaar will not be proof of citizenship...ECI shall issue instructions during the course of the day," the Court ordered.

The Court was hearing a batch of petitions challenging the Bihar SIR exercise.

Notably, the Court was earlier informed that 65 lakh names were dropped from the draft electoral roll published on August 1. On August 14, the Court directed the ECI to upload the list of these 65 lakh voters proposed to be deleted during the SIR.

On August 22, the Court added that people excluded from the draft electoral roll can use their Aadhaar cards as ID proof to get themselves included in the voters' list. Before this, the ECI had stated that it would only accept any of eleven other ID documents for this purpose.

Today, Senior Advocate Kapil Sibal argued that Booth Level Officers (BLOs) were committing gross contempt of court by not accepting claims from excluded voters who gave Aadhaar cards as proof of residence.

Sibal claimed that election officers were being told not to accept Aadhaar as ID proof unless it is also accompanied by one of the eleven other identity proof documents mentioned by the ECI.

"We are racing against time. Is Aadhaar acceptable or not, lordships will have to decide. What they are doing is very shocking, we have prepared a note," he said.

Justice Kant, in turn, asked if the petitioners were saying that Aadhaar should be accepted as proof of citizenship.

"No, no, (it is only for proof of) residence. Citizenship can't be decided by Booth Level Agents anyway, that is by Central government. Nothing to do with citizenship. Aadhaar should be accepted as place of residence proof so that I can vote. 11 documents plus Aadhaar, that's all we want, nothing more than that," Sibal replied.

Sibal added that BLOs themselves had said that Aadhaar would not be accepted as the sole proof of identity.

"Show-cause notices have been issued by ECI to (election) officers for accepting Aadhaar...This is despite three orders of this court...This is because there is no instruction by the Election Commission to accept Aadhaar...The document which is universal in nature is not being accepted!...We have 24 affidavits from separate districts saying that they went with Aadhaar (and it was not accepted)," Sibal argued.

Representing the ECI, Senior Advocate Rakesh Dwivedi strongly opposed Sibal's argument.

"We have advertised...We can file it...Aadhaar can be digitally uploaded...Only thing is, Aadhaar we are not considering as proof of citizenship. We don't accept the contention that Election Commission is not empowered for purposes of electoral roll to decide if a person is citizen or not," Dwivedi said.

However, the Court noted that a show cause notice placed before it only referred to eleven other documents as proof of ID.

"Why does this show cause refer to only the 11 documents? We would like you to clarify. We have repeatedly clarified that the list part of the SIR illustratively indicates 11 documents. Apart from passport and birth certificate (in the list of 11 documents), none of them are conclusively proof of citizenship," the Court remarked.

"I (ECI) have not prevented them from filing Aadhaar," Dwivedi replied.

"We clarified that include Aadhaar...But this seems (to indicate otherwise)," the Court said.

"We will find out if someone is errant somewhere," Dwivedi replied.

Advocate Ashwini Upadhyay, however, raised concern about forged Aadhaar cards being used by foreigners.

"All these Aadhaar cards have been forged by paying ₹1,000. All these Rohingyas and Bangladeshis..," Upadhyay said.

The Court, in turn, noted that Aadhaar is also mentioned in the Representation of Peoples Act, 1951 (RP Act), which governs the conduct of elections in India.

"You can never argue Aadhar is alien to RP Act. (Election) Forms itself refer to Aadhaar. And one of provisions of the Act specifically refers to Aadhaar as proof of residence," the Court said.

Advocate Vrinda Grover, meanwhile, added,

"Only the poor are being eliminated (by not accepting Aadhaar as proof of identity)."

"We know who is the poor here," Dwivedi retorted.

Dwivedi again maintained that the ECI has advertised the fact that Aadhaar can be submitted as proof of identity during the SIR exercise.

"Your lordships have passed an order, we have advertised," Dwivedi said.

"They (ECI) have to issue a direction that this is the 12th document...Send a circular," Sibal argued.

Senior Advocate Gopal Sankaranarayanan added that Aadhaar must be expressly stated to be the twelfth document in the ECI's list of documents that can be submitted to verify a voter's identity. He raised concern that the Court's directive to accept Aadhaar may otherwise be flouted.

"You have officers on ground, told a magic number of 11 documents. Lordships have thrice said that the 12th document (is Aadhaar). Please mention in the order (that this is the twelfth document). Otherwise, it will not trickle down," he contended.

In earlier hearings, the Court had also asked political parties to assist the people who have been excluded from the draft electoral roll.

In the last hearing of the matter, the Court requested the Chairman of the Bihar State Legal Services Authority to depute para legal volunteers to assist voters and political parties in submitting online claims, objections or corrections to the electoral roll.

The Court, however, refrained from issuing any direction to extend the deadline for submitting such claims beyond September 1, after the ECI assured that even objections sent after this deadline would be considered before the electoral roll is finalised.

The Court also recorded the ECI's submission that this process will continue till the last date for submitting names of nominees intending to stand for the upcoming State Assembly elections.

[Live Coverage]