On September 8, the Supreme Court directed the Election Commission of India (ECI) to consider Aadhaar cards as the 12th prescribed document for establishing a voter's identity in Bihar's Special Intensive Revision (SIR). The directive came despite strong opposition from the ECI. Considering the relative ease with which Aadhar cards can be obtained, the ECI felt illegal migrants could bypass citizenship verification and get included in the electoral rolls. The Court indicated that Aadhar can be a form of identity, but it will not be a conclusive proof of citizenship.
In assessing this controversy, it is instructive to view the legal muddle surrounding the citizenship debate. This is particularly important in determining who is Indian and who has the right to participate in the electoral process, a key feature of democracy.
Proof of Identity vs. Citizenship
At the heart of the matter are two distinct concepts. The first is the Aadhar card as the 'Proof of Identity', specially designed to manage India's welfare delivery system. It also authenticates identity for multiple functions, such as opening bank accounts, obtaining a mobile phone connection, and receiving state-sponsored benefits. While Aadhar served a functional purpose in a modern welfare state, it doesn't and was never intended to establish citizenship.
Stemming from this is a question: does a person have to be an Indian citizen of India to avail of welfare schemes? As the latest directive dictates, the answer appears to be yes, as Aadhar is linked to a person's ability to vote. This creates the first dichotomy and a source of legal conflict.
Second, Article 326 of the Constitution is clear in that the franchise is restricted to citizens of India. This Constitutional right is complemented by the legal framework of The Citizenship Act of 1955. With the welfare function of Aadhar linked 'proof of identity' of a person, a parallel system of documentation is established.
The landmark K.S. Puttaswamy v. Union of India case was the definitive judicial statement on this matter. The Supreme Court upheld Section 9 of the Aadhar (Targeted Delivery of Financial and Other Subsidies, Benefits, and Services) Act, 2016. The clause stated that the Aadhaar card "shall not, by itself, confer any right of or be proof of citizenship". The judgment created a legal distinction between Aadhaar's role in welfare delivery and the 'right to vote'.
The new Court directive to the ECI is bound to create tensions between the Centre and the Judiciary. It directly influences the process of verifying whether a person is eligible to vote through the SIR exercise. The implications for West Bengal, Assam and other northeastern states, where there are major concerns over illegal immigration and demographic change, are likely to be profound.
Assam: Old Wounds, New Anxiety
The Assam Movement (1979-1985) against illegal immigration was driven by the deep-seated fear of demographic change. It contributed to the evolution of the legal definition of what it means to be an Indian. The Indian Citizenship Act of 1955 originally granted citizenship by birth through 'jus soli' (right of soil) to everyone born in India. However, amendments in 1986, influenced by political anxieties in Assam, restricted this by requiring at least one parent to be an Indian citizen.
This shifted the principle towards Jus Sanguinis (right of blood). A 1992 amendment later removed the gender bias, allowing citizenship if either parent was Indian at the time of birth.
A key vulnerability in the Indian legal system is the existence of two legal instruments that govern a person's status: the Foreigners Act, 1946, and the Citizenship Act of 1955. The first defines a "foreigner" simply as a person who is not a "citizen" of India. The Citizenship Act, on the other hand, defines an "illegal migrant" as a foreigner who enters without valid documentation or overstays a visa.
Indian law does not distinguish between undocumented citizens, or persons entering the country irregularly. But the latest order, issued under the just-implemented Immigration and Foreigners Act, 2025, gives a chance to persons fleeing prosecution. This includes individuals from Bangladesh and Myanmar in Northeast India. This gets even more problematic when in four districts of Assam, namely Barpeta, Dhubri, Morigaon, and Nagaon - one of which directly borders Bangladesh - the number of Aadhaar cardholders has been found to exceed the projected population by as much as 103%. This led to the State's decision to halt issuing new Aadhar cards on grounds of national security.
A Growing Concern: West Bengal
The fear goes beyond Assam. According to the West Bengal Chief Electoral Officer's Office, data reveal that of the 10.04 lakh applications for new voter enrolment, more than 2.43 lakh were rejected. Crucially, the highest numbers of these rejections were in border districts: Murshidabad, North 24 Parganas, South 24 Parganas, Malda, and Nadia. This anxiety has prompted other Northeastern states, including Arunachal Pradesh, Manipur, and Nagaland, to implement their own measures, indicating the need for a coordinated regional response to this shared security concern.
Yet, the question remains: who will have jurisdiction over such matters, as India's citizenship issues are influenced by the Partition of 1947 and the creation of Bangladesh and Pakistan?
Post the Assam Accord, a legal framework was prepared to decide on whether a person is a 'foreigner', through the Foreigners (Tribunal) Order, 1964, which led to the establishment of a hundred Foreigner Tribunals across Assam. Thirty-six of them are permanent Tribunals, and the remaining 64 require periodic extensions from the Ministry of Home Affairs (MHA). A person accused of being a 'foreigner' is required to provide the following documents to demonstrate Indian nationality: one, if the person has conclusive proof of their ancestor being registered in the pre-1971 electoral rolls; second, a conclusive land record; and, third, the presence of an ancestor with pre-1971 presence. On their part, Northeastern states, including Arunachal Pradesh, Manipur, Meghalaya, Mizoram, Nagaland, and Tripura, have also taken steps to manage the influx of those affected by the Assam government's eviction notices.
These developments prompt another question: does exclusion from voter rolls legally influence the categorisation of someone being a 'non-citizen'?
Unresolved Questions
While the Supreme Court's recent directive may seem innocuous, it has profound implications. It showcases a potential vulnerability in dealing with 'illegal immigrants' and the 'citizenship' debate. With the current SIR process poised to be scaled up to a national exercise, these questions are inescapable. If Bihar is any indication, significant hurdles will arise when the SIR is undertaken in states bordering Bangladesh and Myanmar.
Illegal infiltration is a national security concern. It is imperative that India strengthens the legal frameworks governing identity, citizenship, and the right to vote - principles enshrined in the Constitution. The judiciary's role is now even more critical. The question that persists is, is the judiciary ready to suggest changes to the legal frameworks that govern citizenship, identity, and address illegal migration in the Northeast and West Bengal - especially if there is a national revision through SIR? The nation, which once leveraged Aadhaar for effective governance, will now have to use the same infrastructure to address national security threats arising from illegal migration.
(Swapan Dasgupta is a Distinguished Fellow at India Foundation. Arpan A Chakravarty is a Research Fellow at India Foundation, New Delhi. His research focuses on law and national security.)
Disclaimer: These are the personal opinions of the author
