The Election Commission cannot take upon itself the purely legislative activities of Parliament and legislative assemblies in the "garb" of conducting elections, senior advocate Abhishek Singhvi told the Supreme Court on Thursday.
The arguments were made by senior advocate Abhishek Singhvi, appearing for one of the petitioners opposed to the poll panel's decision to undertake Special Intensive Revision (SIR) of electoral rolls in several states, before a bench comprising Chief Justice Surya Kant and Justice Joymalya Bagchi.
The bench engaged in a detailed examination of the EC's powers as Singhvi and senior advocate Kapil Sibal argued that the poll panel was overstepping its constitutional bounds and imposing unreasonable procedural burdens on citizens while conducting the SIR.
"The Election Commission, in the garb of passing orders for regulating the conduct of elections, cannot take upon itself the purely legislative activity which has been reserved, under the scheme of the Constitution, only to Parliament and the state legislatures.
"By no standards can it be said that the Commission is a third chamber in the legislative process within the scheme of the Constitution. Merely being a creature of the Constitution will not give it plenary and absolute power to legislate as it likes without reference to the law enacted by the legislatures.
"The EC in the guise of this, is doing substantive changes, which is legislation. They may camouflage it…," Singhvi said, leading the arguments on constitutional grounds.
He said Article 324 (superintendence of elections) of the Constitution must be read harmoniously with Article 327 which empowers Parliament to make laws regarding elections.
Singhvi raised strong objections to a form issued in June 2025 requiring 11 to 12 specific documents for verification, asking, "Where is this found in the rules? That form can only come from delegated legislation." He termed the SIR process a "massification en masse exercise" designed to verify citizenship rather than routine photo verification, asserting that the EC lacks the jurisdiction for such a blanket drive.
Sibal, who concluded his submissions on Thursday, raised the question over the scope of the power of booth level officers (BLOs), asking, "Can the BLO judge if a person is of unsound mind?" "It is a dangerous proposition and unreasonable, both substantively and procedurally, to have a school teacher deployed as a BLO to determine citizenship," Sibal said.
Referring to Section 16 of the Representation of the People Act, which outlines the grounds for disqualification for being registered in an electoral roll, Sibal said, "Whether a person is an Indian citizen or not is decided by the MHA. Whether a person is of unsound mind is determined by a competent court.
"Laws such as the Prevention of Corruption Act and the Representation of the People Act form the statutory basis for disqualifying a person from the electoral roll. You cannot ask the BLO to decide all this." Sibal further elaborated that the rules being imposed are similar to those in the Foreigners Act, where the burden of proof of citizenship is upon the person to prove that he is not a foreigner.
"How will I discharge the burden when my father has not voted in the 2003 roll or he died before that?” he argued.
CJI Kant replied to this, "But if your father's name is not there on the list and you too did not work on it... then perhaps you may have missed the bus. The only difference is that if your parents' name in the 2003 list... if it is not there..." When Singhvi raised the issue of the lack of jurisdiction of the poll panel in conducting the SIR and said it was "an illusion of grandeur", the bench observed, "Going by your argument, the EC will never have the power to do this exercise and moreover, it is not a routine or daily update." The bench will resume hearing on December 2.
On Wednesday, the CJI-led bench said the argument that the SIR of electoral rolls was never conducted before in the country cannot be used to examine the validity of the Election Commission's decisions to carry out this exercise in several states. It said the poll panel has "inherent power to determine correctness of entry in Form 6".
Form 6 has to be filled out by a person to register himself or herself as a voter.
The bench also reiterated that the Aadhaar card does not "confer absolute proof of citizenship and that is why we said it will be one of the documents among the list of documents... If anyone is deleted, they will have to be given a notice of deletion". PTI SJK MDB SJK KSS KSS
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