सुप्रीम कोर्ट ने क्यों नहीं रोका SIR?

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On Wednesday, the Indian Express published a bombshell investigation showing that two election commissioners were in revolt against the Special Intensive Revision of the voters rolls being spearheaded by the chief of the panel.

The SIR is an unprecedented reworking of India’s electoral rolls. Under the exercise, crores of Indians have been denied the right to vote. The Indian Express investigation, more than anything else, revealed one dynamic: the Special Intensive Revision was centralising the preparation of the voter rolls. The two commissioners themselves pointed out that this was illegal. Indian law is clear that rolls are created locally by an electoral registration officer.

This problem was brought to the notice of the courts several times. It is a basic function of the judiciary to review administrative acts to ensure that they are in line with existing laws. In this case, the law was in black and white – and it was clear that it was being ignored.

Why did the courts decline to act?

A blatant illegality

The controversy started in 2025 when in both Bihar and West Bengal, journalistic reports made it clear that electoral registration officers were not the ones deciding which names would be included or deleted names during the SIR. In one case, local officials in Bengal even wrote to the Election Commission pointing out that the deletions were “system-driven”, referring to the panel’s software, rather than being carried out by the electoral registration officer.

The Bengal SIR was intensely litigated in the Supreme Court. What happened when this blatant illegality was brought to the bench’s notice? As my colleague Anant Gupta pointed out, the court simply accepted at “face value” the Election Commission’s assertion that there was no illegality. And that was that.

Incredibly, when a similar challenge was brought to the court with respect to the Bihar SIR, the court actually said it was acceptable for the Election Commission not to follow the law since in the new process the “substance [of the law] remains intact”. It never explained how limiting the powers of electoral registration officers maintained the “substance” of a procedure that is designed to be local.

Mute court

The local versus central pivot is an obvious candidate for judicial review, given how clearly the SIR is contravening Indian law. But this is only the tip of the iceberg. As legal scholar Gaurav Mukherjee points out, there were several points at which the courts should have stopped the SIR.

The Election Commission had no legal justification for creating arbitrary exclusion norms such as so-called logical discrepancies. Logical discrepancies refer to elements in the records that the panel considers inconsistencies, such as a mismatch with the spellings of names of the voters’ parents, an unreasonably low gap between the ages of parents and children or if parents have more than six children.

Even more egregious is the overwhelming empirical evidence that this process targeted Muslims in Bengal, violating the Supreme Court ruling that there should be “no identity-based exclusion from the rolls and the right to vote of adult citizens”.

Remarkably, during the Bengal SIR hearings, a Supreme Court judge remarked that even if the right to vote was taken away in this election, people wrongfully excluded could come back and vote in the future. As if in a democracy, the right to vote can be arbitrarily denied and then reinstated on a whim.

The effect of the Supreme Court’s abdication of judicial review has been disastrous.

In Bengal, since the process singled out Muslims, the SIR was a significant shot in the arm for the Bharatiya Janata Party since the community does not, as past data shows, large vote for the Hindutva party. It went on to register a shock victory in a state it had never won before.

In a regression analysis of the Bengal SIR published by Scroll in June, academics Bhanu Joshi and Neelanjan Sircar showed that there was a “strong relationship” between the SIR deletions and results: “constituencies where the electoral roll shrank more also saw the BJP do better relative to its main challenger, the Trinamool Congress”.

This arbitrary and illegal exercise has taken away the right to vote for lakhs of Indians. Given the pace of appeals, it might take years, even decades, for them to get it back. Of the appeals decided till now, an overwhelming number – 91% – have seen deletions being reversed, an indication of the scale of just how erroneous the SIR was.

While the conduct of the Supreme Court in allowing an illegal act like the SIR might be unfortunate, it is not surprising.

A long history

India’s judiciary makes a lot of noise about being the most powerful in the world and often tom-toms its role as a defender of rights. Yet, in practice, for many decades now, we have seen strong empirical evidence that in actual conduct, the higher judiciary is an organ that, more often than not, meekly follows the executive.

This is especially true if there is a strong government in place. This was evident in 1976, when the Supreme Court fell over itself to rubberstamp Indira Gandhi’s Emergency and its excesses. It was left to politicians and activists to oppose the suppression of rights, and eventually it was voters who kicked Gandhi out of office.

Of course, with an even more authoritarian government in place today, the court is reinforcing its history of timidity. In the Narendra Modi era, judges have made sure never to step on the toes of the executive.

If the situation is to change, as it did in 1977 when Gandhi called off the Emergency, the change will have to come from a place other than the court on New Delhi’s Tilak Road.

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