The Election Commission of India does not have Unfettered Power

July 9, 2025

Context:

Ahead of the upcoming Assembly elections in November, the Election Commission of India (ECI) has ordered a Special Intensive Revision (SIR) of electoral rolls in Bihar.
Opposition parties allege that the move is intended to disenfranchise thousands by questioning their citizenship status. The ECI has rejected these claims, asserting its legal authority to conduct the revision.
With multiple petitions now before the Supreme Court, the focus has shifted from political motives to the legality and constitutional validity of the ECI’s power to initiate such a revision so close to the elections.

Legal Grounds for Voter Disqualification and the Scope of ECI's Powers

Constitutional Basis for Voting Eligibility
- Article 326 of the Constitution mandates elections based on adult suffrage, allowing every Indian citizen aged 18 or above to vote, unless disqualified on specific grounds.
Disqualifications under the Representation of the People Acts
- The RPA, 1950 outlines disqualifications such as:
  - Being of unsound mind (as declared by a competent court), and
  - Disqualification under Section 11A of the RPA, 1951.
Conditions for Voter Registration
- Section 19 of the RPA requires a person to be:
  - At least 18 years of age, and
  - Ordinarily resident in the constituency.
- Section 20 of the Act clarifies the meaning of "ordinarily resident."
  - Simply owning or having a house in a constituency does not make someone an ordinary resident there.
  - At the same time, if a person is temporarily away from their usual place of living, they still remain an ordinary resident of that place.
ECI’s Constitutional Authority
Limits on ECI’s Powers
- Despite its broad mandate, the ECI’s powers are not unlimited.
- As held in Mohinder Singh Gill v. CEC (1978), the Commission must adhere to existing laws where they apply.
- It can exercise its discretion only in areas not covered by statute, solely to advance the objective of free and fair elections.

Legality of Electoral Roll Revision and the ECI’s Powers Under Scrutiny

Legal Provisions for Electoral Roll Revision
- Section 21 of the Representation of the People Act (RPA), 1950 outlines four types of electoral roll revisions:
  - Before Lok Sabha or Assembly elections;
  - Before by-elections;
  - On ECI’s annual direction, and
  - Special revision for a constituency or part of it (with the ECI recording reasons for doing so.)
- Revisions under points (1) to (3) must use January 1 as the qualifying date, per Section 14.
- Only special revisions (point 4) can be conducted anytime, but only for a constituency or part thereof, not an entire state.

The Controversial Bihar SIR and Qualifying Date Issue

The ECI’s June 24 order set July 1, 2025 as the qualifying date under Section 21(2)(b).
However, this contradicts the legal mandate that requires January 1 as the qualifying date.
Furthermore, the term “Special Intensive Revision (SIR)” does not exist in the RPA.
Therefore, the current revision in Bihar does not conform to legal provisions, since Section 21(3) allows special revision only for part of a constituency—not for an entire state.
Citizenship Proof and Voter Applications
- As per Rule 8 of the Registration of Electors Rules, citizens must submit information “to the best of their ability.”
- Electoral registration officers cannot reject applications solely due to lack of "foolproof" citizenship documents.
- The ECI is expected to uphold this legal safeguard during the revision process.

Conclusion

While the Election Commission of India does have the power under Section 21 of the RPA to revise electoral rolls, that power under Section 21(3) is specifically limited to a constituency or part of it—not an entire state.
Despite the wide powers granted under Article 324, the ECI remains bound by statutory law and is accountable to the principles of natural justice, as affirmed by the Supreme Court.

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