There is a challenge pending to the legality of the “Special Intensive Revision” (SIR) in Bihar, where, upon the insistence of the Election Commission (EC), the Supreme Court has taken the position that it will judge the exercise only upon its completion. Traditionally, the courts do presume legality apropos actions of a constitutional authority, but on occasion such deference takes away from accountability owed to the people. The court hearings thus far have only been a series of negotiations between the petitioners, who claimed that the exercise was being carried out in the most arbitrary manner, and the EC, which said that all would be well in the end.
The petitioners had brought a comprehensive challenge to the legality of the exercise but, in the moment, arguments have centred on the immediate practicalities alone, on how to make the exercise more equitable for eligible voters: Those who have been summarily deleted, or those without requisite documents. The Supreme Court has introduced several important checks, which include making Aadhaar cards an acceptable document for enrolment, and also directing political parties and district legal services authorities to help with the process.
The final rolls were published yesterday. They have 7.42 crore voters, down from 7.89 crore. The issue of deletion of lakhs of voters may be considered by the Supreme Court at the next hearing; the EC might argue that those whose names have been deleted have the option of individually petitioning the competent authority.
In any event, the EC’s gambit has imperceptibly shifted the terrain. It is now understood that the state can execute hugely disruptive exercises without any discussion in the public sphere, and without any moral or legal accountability. The EC had itself conducted summary revisions and updations of the Bihar electoral laws as recently as January 2025. However, in the first instance, at least, the EC was not called upon to explain, at the outset, why it was doing this resource-intensive exercise, whether there were less disruptive ways of doing it, and whether it thought about the cost to more marginalised voters, who would have to spend money and sacrifice workdays to get through the bureaucratic process. The big little powerplay is in the refusal to seek, and to offer, accountability, such that everyone’s energies are spent only in resolving the messiness of the exercise.
The question of legality, too, will be interpreted in different ways. In terms of the black-letter law, there will be arguments on whether Section 21(3) of The Representation of the People Act, 1950 gives the EC widespread powers to conduct special revisions at will. However, there will also be the question of whether an exercise of such powers allows for changing the very scheme of the process of enumeration of adult voters.
Article 324(1) of the Constitution of India gives the responsibility for “superintendence, direction and control of the preparation of electoral rolls” to the EC. Article 326 first declares that there shall be universal adult suffrage for all citizens of India, before it mentions disqualifications from the right to be a voter. Those very articles of the Constitution that the EC is citing as indicative of its powers to conduct the SIR, and to weed out ineligible voters, can also be interpreted to mean that the Commission has been given the constitutional duty to facilitate enrolment. It is not the citizen’s duty to take days off, find papers, submit forms, chase BLOs. Rather, it is incumbent upon the EC to ensure enrolment and see to the fact that those with “document deficits”, or other vulnerabilities relating to access and resources, do not get left out of the process.
Article 324 has to be read together with Articles 327 and 328, which give powers to Parliament and to legislative assemblies to make laws enabling the EC to do its duties under Article 324. The scheme of The Representation of the People Act, 1950 and the Registration of Electors Rules, 1960 makes the process of preparing electoral rolls personalised and home-based, as opposed to being “document heavy” and impersonal. The primary responsibility is to be inclusive and ensure universal adult suffrage. It is telling that the Act does not prescribe any test for eligibility, indicating that the draft roll is meant to be all-inclusive. The test for disqualifications may begin once an equitable and fair process has been applied to create a universal roll, and that process is also well-prescribed in law. The process of testing for disqualifications is not meant to take primary place at the cost of equitable enumeration.
In one fell swoop, the SIR inverts the whole process — the burden of inclusion is shifted onto the marginalised voter, and also made document-centred. The shifting of the burden of voter authentication onto the citizens, and to view every citizen with suspicion until proven otherwise, is also monumental. To presume consensus on this, without any public discussion, is the next gambit.
Of course, there is a third way in which the limits of the EC’s powers would be interpreted: Should it not be able to conduct SIRs in the face of “ghuspaithiya” concerns? A strawman would be constructed to argue for a shift in the constitutional responsibility to include voters . I call it a strawman because it is largely unsubstantiated, especially in the Bihar context: No significant numbers have shown up after the exercise. Also, it doesn’t answer the question why the illegal voters did not show up in the summary revisions, or through prescribed processes of disqualification. This, too, is classic powerplay.
In the final analysis, the question that will have to be answered is whether we shortchange constitutional rights in the face of fearmongering.
The writer is a Supreme Court advocate
