SC Seeks Answers on SIR, But a Notice Cannot Restore Votes Lost to Delay

The Supreme Court deserves credit for intervening in SIR-CEC row. But notice is a beginning, not a remedy.

Former judges, led by Justice Madan B Lokur, have formed an independent commission to examine the SIR's legality and impact.

(Photo: The Quint)

PV Narasimha Rao once explained his method of government. "It is not that I do nothing," he said. "I think about it and decide nothing can be done." His admirers called it masterly inactivity. It suited a minority government in a season of crisis. It does not suit a constitutional court in a season of mass disenfranchisement.

For more than a year, the Supreme Court watched the Election Commission of India's (ECI) Special Intensive Revision (SIR) move from state to state. It thought about it a great deal. It decided, in effect, that little could be done. On Monday, 5 October, it stirred.

A bench of Chief Justice Surya Kant and Justice Joymalya Bagchi heard a petition against decisions taken under Chief Election Commissioner (CEC) Gyanesh Kumar. It refused to suspend him unheard. That was right. No court should remove a constitutional officer on the strength of newspaper reports. But it issued notice to the Union, the Commission, the CEC, and both Election Commissioners. The Chief Justice called the statutory framework mandatory. "If there is any violation, we will undo," he said.

Justice Bagchi said decisions found not to be unanimous could be struck down as ultra vires. The bench wants a clear and transparent answer.

Then came the sharpest moment. Counsel argued that the Commission had altered Form 6, the form through which new voters enrol. The form sits in a schedule to the Registration of Electors Rules. It cannot change unless the Rules change. The Chief Justice said plainly that the Court had approved no modified Form 6. The Court will now find out who made the change. The Commission had leaned on the Court's name. The Court has taken its name back.

The Court deserves credit for both steps. But notice is a beginning, not a remedy. The country expects speed. It has seen what delay costs. The Court upheld the Bihar SIR on 27 May 2026, six months after Bihar had voted and a government had taken office. Bengal went to the polls with its rolls shorn. Uttar Pradesh, Uttarakhand, Punjab, Goa and Manipur vote early next year. A judgment that arrives after the ballots are counted is history, not justice.

Can Elections be Above Law?

Consider the numbers. Over 13 crore names have gone off the rolls under the SIR. That is more people than live in Japan. Some deletions were surely proper. The dead do not vote. Those who have moved should vote where they now live. But nobody has shown that 13 crore deletions followed due process. In Bengal, the judges hearing appeals reportedly allowed about 93 per cent of the cases they decided. Many of those who won still could not vote. A right restored after the polls close is a right denied.

The machine itself is cracking. Maharashtra's Chief Electoral Officer has protested. Odisha's CEO has sought premature retirement. Karnataka's CEO has ordered an inquiry into bulk Form 7 objections, aimed largely at Muslim voters.

The Bombay High Court has put hard questions to the Commission. One judge hearing Bengal appeals has quit. Former judges, led by Justice Madan B Lokur, have formed an independent commission to examine the SIR.

The rift reaches the top. The Economic Times reports that the two Election Commissioners, Sukhbir Singh Sandhu and Vivek Joshi, differed with the Chief Election Commissioner. They read an Attorney General's opinion, and an old Delhi High Court judgment, as favouring a return to the annual Summary Revision. That decades-old practice stopped after 2024. Sixteen states and union territories now wait for it. Himachal Pradesh, Jammu and Kashmir and Ladakh still run on 2024 rolls. Young voters who filed Form 6 sit in limbo, outside the final roll.

The rift reaches the top. The Economic Times reports that the two Election Commissioners, Sukhbir Singh Sandhu and Vivek Joshi, differed with the CEC. They read an Attorney General's opinion, and the 1981 Delhi High Court ruling in Ramakrishna Hegde vs Election Commission of India, as favouring a return to the annual Summary Revision. Sixteen states and union territories still wait for it. In Hegde's case, the court reminded the Commission of its duty to enrol every eligible adult. That right, it said, should not be defeated by any administrative inefficiency. Where the Commission skips a revision, it must record its reasons in writing.

The Commission now says, in a press note, that its SIR and Form 6 decisions were unanimous. Then let it produce the file and the minutes. Let the two Commissioners release their letters. The law requires a multi-member Commission to act unanimously where it can, and by majority where it cannot. A CEC who acts alone does not act as the Commission.

Two judges have already said what the Court must now decide. Justice Rohinton Nariman, speaking in Rajkot, put it bluntly: "You can't have an election commission which functions or malfunctions like this."

He noted, with evident pain, that 90 lakh deletions in Bengal had not moved the Court enough to stay the exercise. He urged it to decide the challenge to the 2023 appointments law without delay. Justice Ujjal Bhuyan went further, and he still sits on the bench. Speaking at NALSAR in Hyderabad, he did not name the SIR. He did not need to. Wholesale disenfranchisement, he said, would violate Articles 326 and 14.

The Constitution knows no second class of citizens without votes. To detach the vote from the citizen is like taking the soul from the body. No authority can do it, and no court can endorse it or condone it.

A Series of Missteps 

Why has the Court held back? Habit, mostly.

In Ponnuswami (1952), it read Article 329(b) to bar interference once an election is under way. That was sound law. It hardened into reflex. In Mohinder Singh Gill (1978), Justice Krishna Iyer called Article 324 a reservoir of power. He also warned that the power must be exercised fairly and within the law. The reservoir is remembered. The warning is forgotten.

The pattern repeats.

In 2019, the Court let the Commission's clean chits on model code complaints against the powerful stand.

In 2024, it rejected full VVPAT verification. It declined, mid-election, to order release of Form 17C data.

It refused to stay a law that dropped the Chief Justice from the panel choosing Commissioners. The present CEC was chosen under that law.

In 2025 it let the Bihar SIR proceed, merely adding Aadhaar as a document. It reserved judgment in January 2026. It upheld the SIR on 27 May 2026, six months after Bihar had voted and a government had taken office. That judgment upheld a power. It did not bless every use of it. A power valid on paper can still be abused in practice.

In Lal Babu Hussein (1995), the Court held that an existing entry on the roll is presumed valid. The objector bears the burden. The voter gets a hearing. Bulk Form 7 objections against one community turn that rule on its head. An exercise pushed through over colleagues' objections, without recorded reasons, where appeals succeed but votes are still lost, is neither free nor fair.

Plenary power is a trust, not a fortress. When powers are misused, the immunity from scrutiny disappears. Deference is owed to an honest exercise of discretion. It is not owed to its abuse.

In State of Madras vs VG Row (1952), Chief Justice Patanjali Sastri described the Court's role as that of a sentinel on the qui vive. The phrase comes from the old French sentry's challenge: who goes there? A sentinel on the qui vive stays awake and questions every footstep at the gate. A sentry asleep on duty is worse than no sentry at all. He lets the town believe it is safe.

The Supreme Court commands no army and no purse. Citizens obey it because they revere it. That reverence is earned, one hard case at a time. A court that thinks about the disenfranchisement of 13 crore people and decides that nothing can be done does more than risk its reverence. It invites a harder question. Citizens may begin to ask what the institution is for.

Rao could afford masterly inactivity. He had to face the voters at the next election. The Supreme Court faces no such test. Its only test is whether it acts when it must. That time is now.

(Sanjay Hegde is a senior advocate at the Supreme Court of India. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)