SIR Voter Deletions: The Election Commission Has Had the Last Laugh

Why involve the judiciary when the blame lay with the ECI's SIR exercise, asks Justice K Chandru.

One is at a loss to know why the entire exercise of inducting the judiciary into the election process was undertaken, when the blame lay with the SIR exercise initiated by the ECI.

(Photo: The Quint)

Ever since the Constitution came into force, one of the institutions which got away with even murder is the Election Commission of India (ECI).

Over the years, especially after the advent of TN Seshan and the new interpretation given to Article 324—vesting the election body with power of superintendence, direction, and control of elections—there is hardly any litigation in which the ECI did not succeed. Even in cases of manifest error, Article 329 helped them to ward off any entertainment of cases by courts.

Their new adventure of Special Intensive Revision (SIR)—that too on the eve of elections in Bihar and later to be followed in several other states—became more contentious than never.

Rewriting the Rules

The Supreme Court initially, with reluctance, agreed to entertain a direct petition before it, and began making off-the-cuff remarks which led many to believe that it would take the bull by the horns. However, later developments showed that the court’s decision to entertain the case, notwithstanding Article 329, was only to prevent any High Court from passing orders that may not be palatable to the Modi government.

The initial SIR exercise, which excluded several thousand voters and was first seen as a shock, was later normalised during the course of the hearings as a routine exercise.

The only SOP given by the court was that out of several identity proofs, the Aadhaar could not be excluded. But when the SIR enquiries became more worrisome and even crossed its border, the court told them politely that the inquisition made bordering on citizenship enquiry were not within their cup of tea.

The SIR Fallout

After the successful stint in Bihar, the scene turned towards Assam, Bengal, Kerala, and Tamil Nadu.

The results of the SIR were nothing short of horror stories. More than Tamil Nadu, which saw nearly a crore votes deleted, the situation in Bengal was worse. The deletions were selective and almost bordered on communal lines.

To the surprise of many, West Bengal Chief Minister Mamata Banerjee appeared before the Supreme Court in person and began exposing the alleged misdeeds of the ECI in Bengal.

The bench hearing the matter also had Justice Joymalya Bagchi, a judge from Bengal, who started making observations to make it appear that the court was doing a balancing exercise. Notwithstanding its earlier position that under Article 324, the ECI could conduct an SIR even with limited time before elections, the court later conveyed that it could not interfere due to the constitutional bar—and that disputes must await the conclusion of the election process.

However, the situation in Bengal was so dismal that the court felt compelled to undertake some curative measures. In one instance, a retired High Court judge whose name had been deleted had to raise an outcry before it was quietly restored.

To appease the aggrieved, the court proposed inducting judicial officers into the SIR process and directed the Chief Justice of the Calcutta High Court to spare several judicial officers for this extra-constitutional task. Little attention was paid to court pendency or the legality of such orders.

The Court Retreats

If the ECI can constitute its own teams for the SIR exercise, where is the justification for bringing in judicial officers for such duties—something unheard of? While courts have occasionally appointed commissioners or even judicial officers in disputes between powerful parties, doing so in the face of Article 329 raises serious questions of jurisdiction and may invite allegations of bias. As expected, in Malda, some judicial officers were gheraoed by impatient voters who were left out of the process.

Instead of the ECI, it now appears to be the turn of the Supreme Court to threaten Mamata Banerjee and her party with serious consequences, which indirectly brought the court into a partisan role in the election arena. The deletion of nearly a crore voters became a major concern, and the finality of decisions by judicial officers remained suspect. This led the court to go further by constituting appellate tribunals comprising retired High Court judges and setting up a committee headed by a retired Chief Justice of the Calcutta High Court to frame an SOP.

Finding that there were as many as 34 lakhs claims and the so-called appellate tribunals could never complete the exercise of hearing proper appeals, especially with elections already announced for 23 and 29 April, the Supreme Court began to backtrack.

In fact, Justice Bagchi and Chief Justice Surya Kant stated that those with pending appeals to vote would place an undue burden on the appellate tribunal judges. The court emphasised that the adjudication process must be completed by the specified deadline, and only successful appellants will be reinstated as voters for the 2026 elections. This effectively means that elections will proceed even as a substantial number of voters remain excluded.

To appease those left out, Justice Bagchi made a consoling statement,

“Right to vote in a country you were born is not only constitutional but sentimental. It is like you are a part of democracy and help in electing a government.”

Leaving sentiment aside, let us examine how the courts have dealt with the decisions of the ECI and the functions of tribunals before.

The Court’s Early Deference to the ECI

In one of the earliest decisions, the court, while refusing to interfere with the decision of the ECI in Mohinder Singh Gill, December 1977, held: "Election, is a long, elaborate, and complicated process and, as far as we can see, the rule of audi alteram partem [hear the other side], which is in itself a fluid rule, cannot be placed in a strait-jacket for purposes of the instant case. It has also to be remembered that the impugned order of the Election Commission could not be said to be a final pronouncement on the rights of the parties as it was in the nature of an order covering an unforeseen eventuality which bad arisen at one stage of the election."

"The aggrieved party had all along a statutory right to call the entire election in question, including the commission's order, by an election petition under Section 80 of the Act, for the trial of which an elaborate procedure has been laid down in the Act," the court added. 

But, in the present case, the court did not grant such liberty to ECI decisions. Instead, it introduced the extraordinary mechanism of inducting judicial officers into the SIR process, with finality resting with tribunals headed by judicial members. Having gone that far, can the court now apply brakes halfway? If Article 329 is not invoked, the court ought to have gone the full distance instead of expressing its inability.

In another earlier ruling, RDShetty, May 1979, the Supreme Court, while emphasising procedural fairness, quoted an American judgment: “He that takes the procedural sword shall perish with the sword."

Similarly, when elections in West Bengal were stalled by a Calcutta High Court order on the ground of faulty electoral rolls, the Supreme Court not only vacated the stay, but allowed the election process to continue. The court observed: “It must follow that the fact that certain claims and objections are not finally disposed of, even assuming that they are filed in accordance with law, cannot arrest the process of election to the legislature. The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations.”

It was further advised by the court in Lakshmi Charan Sen, May 1985, “Enumerators should be persons who are not affiliated, either directly or indirectly to any political party, whether in power or not; for this purpose, it is desirable that only government officers including teachers of government schools and colleges may be appointed enumerators, and not of non- government organisation or institutions unless their rules debar their employees to be members of political parties.”

The Present Contradiction

However, the court, which took up the sword of procedural fairness, did not wish to hurt anyone in the final process. Justice Bagchi consoled everyone, stating that the intention was to promote elections—and not to interdict them.

"It's not end justifying means but means justifying the end. This is not a fight between the State and the Election Commission. This is not a blame game. It is about voters being sandwiched between two constitutional authorities. Courts have intervened only to promote elections, not interdict it."

Justice Joymalya Bagchi

One is at a loss to know, then, why this entire exercise of inducting the judiciary into the election process was undertaken, when the blame lay with the SIR exercise initiated by the ECI, by which several crores of voters were deleted without any forum for redress before the election.

What if the appellants before the tribunals succeed in having their names included in the rolls? Even for that, Justice Bagchi had an answer: “Necessary consequences shall follow.”

It would appear that the ECI has had the last laugh.

(Justice K Chandru is a former judge of the Madras High Court. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses them nor is responsible for them.)