In Indira Nehru Gandhi v Raj Narain (1975), Chief Justice A N Ray made a strange distinction. Democracy, he held, may be part of the basic structure, but free and fair elections could not themselves be elevated to that status. History, however, moved in the opposite direction and for good. Over the decades, the Supreme Court repeatedly recognised that democracy without free and fair elections is a constitutional shell. In Mohinder Singh Gill (1978), the court held that without periodic free and fair elections, democracy ends. In the Gujarat Assembly Election Reference (2002), it went further: Democracy and free and fair elections, the court said, are “inseparable twins”.
Free and fair elections fundamentally depend on the independence and absolute neutrality of the Election Commission of India (ECI) as an umpire. It has to earn the trust of the Opposition. Did the ECI have the power to suddenly announce and execute Bihar’s Special Intensive Revisions (SIR) in a matter of a few months? Was the unprecedented new procedure adopted by it constitutionally permissible? Can the ECI scrutinise citizenship status? These were some critical issues which have now been answered in favour of the ECI by a bench of Chief Justice Surya Kant and Justice Joymalya Bagchi in their 124-page judgment. No one can question the judgment’s positivistic and legalistic interpretation of the black letter of applicable laws. The CJI, who authored the judgment, combines in himself the rare characteristics of a judge who simultaneously believes in both judicial restraint as well as judicial activism. In this judgment, where the stakes were high, he preferred to go strictly by the letter of the law.
The judgment correctly held that disputes over electoral rolls are not “merely administrative” matters. They are important for their impact on democratic setup, although, in the end, the empirical evidence of the deep consequences of SIR were not considered significant enough to even be mentioned in the judgment. Thus, what Justice Ray denied formally in 1975, the present judgment risks diluting in practice through excessive deference to the powers of the ECI. The problem with the SIR judgment is not that it values electoral integrity too highly. Certainly, electoral rolls must be accurate and error-free. The question is whether we have got such rolls after the massive exclusionary exercise. Justice Surya Kant correctly held that no constitutional democracy can function with duplicate, fictitious or fraudulent entries. But the judgment did not raise the equally important possibility of genuine citizens being pushed out of the democratic process in the name of so-called “purification”. Did the petitioners not bring to the court some living persons who had been shown as dead? But the judgment simply stated that no rolls can be perfect and that there was sufficient transparency in exclusion and opportunities of appeal.
Interestingly, during the 2003 intensive revision, which was taken as the basis of the present exercise, heightened scrutiny in specific areas where concerns existed was considered, instead of subjecting an entire state to the same level of documentary burden. Without asking the ECI to show concrete reasons, the court accepted its justification for the statewide exercise. Section 21(3) of the Representation of the People Act contemplates special revision in “any constituency or part thereof” and CJI Surya Kant, applying the well-known rules of statutory interpretation, correctly held that “any” here would mean “all”. Justice Surya Kant is in fact right in saying that if “any” is narrowly interpreted as one or few constituencies, it would require hundreds of separate SIR notifications.
Justice Surya Kant’s interpretation of Article 324 and 327 is absolutely correct as neither is the ECI simply powerless the moment Parliament enacts a law nor does it have any authority to go against the statute. The judgment is correct in declaring that Parliament itself through Section 21(3) has preferred to give ECI extremely wide powers as to SIR through non-obstante clause and in such manner which ECI “may think fit”.
In doing so, however, the judgment puts procedural availability above procedural accessibility. For an urban, educated, aware and document-rich citizen, filing forms and navigating objections procedures may not look difficult but millions in rural Bihar do not enjoy similar social capacity. The judgment approached documentary compliance as though the burden is socially neutral. Marginalised citizens lacking documentary records, and minorities facing heightened bureaucratic suspicion do not stand on equal footing before the powerful state.
ECI’s huge victory in the judgment was the upholding of its list of 11 documents but then the petitioners argued that nearly 37 per cent of adults in Bihar lacked even one of the prescribed documents. For marginalised communities, this is even more concerning. The judgment also did not seriously consider the ground realities of massive confusion, administrative inconsistency, rushed timelines, and the enormous discretion vested in the low-level local officials. Evidence of BLOs filling forms themselves, missing acknowledgments, and lakhs of forms being submitted without documents find no mention in the judgment because issues were framed purely in terms of the ECI’s powers, and not the impact when such powers are exercised.
Ideally, the scale of exclusion itself should have invited deeper constitutional scrutiny. The final roll reportedly stood at around 7.42 crore electors. This was substantially lower than official population projections that suggest Bihar would have approximately 8.22 crore eligible voters. Yet, the judgment concluded that the “post-exercise data” did not reveal disenfranchisement so “widespread or systemic” as to establish constitutional infirmity. But this approach reduced constitutional scrutiny to aggregate numbers alone. The deeper issue was not simply how many voters were excluded, but who was really excluded.
Districts recording some of the highest deletions reportedly overlapped heavily with Bihar’s poorest and most migration-affected regions. Muslims appeared disproportionately represented among excluded voters, especially in the Seemanchal belt where poverty, migration and documentation gaps intersect with longstanding anxieties surrounding citizenship. Of the 323,000 voters who were ultimately deleted from the draft rolls in the final list, Muslims according to one report accounted for 32.1 per cent. The other report asserted that Muslim exclusion was not really disproportionate as it stood at 18.4 per cent. In the draft rolls too, reports suggest Muslims accounted for 24 per cent of the deletions although they are 17 per cent of the state’s population. In contrast, the Hindu-majority districts recorded lower-than-average reflecting a broader pattern where nine out of the ten top Hindu-dominated districts were below the state average 6.05 per cent. This alleged differential was entirely overlooked by the court. Women reportedly constituted nearly 60 per cent of exclusions.
Rule 21A Registration of Electors Rules, 1960 requires the ERO to form an opinion regarding deletion and provide affected electors an opportunity of hearing. The court held that these safeguards were “preserved in substance” and the process adopted by the ECI remains within the bounds of the statutory mandate. But this reasoning effectively reversed the logic of natural justice. Traditionally, the burden lies upon the state before excluding a citizen from the electoral roll. Under the SIR framework, the burden shifted onto citizens to proactively rescue their franchise after exclusion. Non-inclusion in the draft roll was treated merely as a temporary administrative stage rather than a substantive democratic injury.
Strictly in terms of law, the court rightly distinguished between the formal “determination of citizenship,” which belongs to the Ministry of Home Affairs, and the Election Commission’s “administrative satisfaction regarding electoral eligibility”. The constitutional difficulty, however, lies in the consequences of exclusion. Justice Surya Kant’s assurance that exclusion from the electoral roll does not formally divest citizenship offers only limited comfort as the West Bengal CM has announced denial of welfare schemes to excluded persons. Interestingly, right to life includes right to livelihood and is a right under Article 21 available even to non-citizens as well.
