Tryst with the Constitution: On the Supreme Court’s SIR judgment

Last week, the Supreme Court delivered its judgment upholding the Special Intensive Revision (SIR) of electoral rolls in Bihar. As the judgment itself acknowledged, the case essentially required the Court to reconcile two competing democratic commitments – ensuring that no eligible citizen is prevented from exercising their franchise, while at the same time preserving the integrity of electoral rolls by ensuring that they accurately “reflect the true composition of the political community".

In brief, the petitioners had challenged the order issued by the Election Commission of India (ECI) directing an SIR of electoral rolls across Bihar. They essentially argued that the Commission lacked the authority to undertake a State-wide revision, questioned the timing of the exercise in a State due for elections within months and challenged the methodology adopted for being arbitrary and unconstitutional. The Court rejected all these challenges.

The judgment is significant not merely because it upholds the Bihar exercise, but because it is likely to serve as the principal precedent governing future revision exercises, including those concluded, presently underway, or contemplated elsewhere in the country. Yet, the significance of the judgment lies as much in its reasoning as in its conclusion. The Court’s conclusion regarding the Commission’s authority to undertake the exercise - and the timing of that exercise - is difficult to fault as it falls squarely within the letter of the law. However, other aspects of the judgment, particularly its application of the proportionality test and its observations concerning the Commission’s satisfaction over the questions of citizenship, warrant closer scrutiny.

The Court’s conclusion that the ECI possesses the authority to undertake an SIR flows directly from the text of Article 324 - which confers broad powers of superintendence, direction and control over elections - and Section 21 of the Representation of the People Act, 1950 (RP Act), which empowers the Commission to prepare and revise electoral rolls before each general election to the Lok Sabha or a Legislative Assembly. Further, sub-section (3) empowers the Commission to direct a special revision if it considers it necessary. The arguments that the Commission ought to have proceeded under sub-section (2), that the use of the phrase “any constituency” suggests revisions on a constituency-by-constituency basis and that the requirement of recording reasons was not adequately satisfied, are all dealt with by the Court in considerable detail. Whether the exercise was wise or administratively desirable is a different question. As a matter of legal authority, however, the Commission was on firm legal footing.

Further, much of the public debate surrounding the SIR focused on whether such an exercise should be conducted shortly before elections. However, the legal framework is silent on the timing of such an exercise, leaving the matter largely to the discretion of the Commission. Unless a statutory provision prohibits the exercise within a particular timeframe, courts have generally been reluctant to second-guess decisions of the ECI merely because they are politically contentious. Consequently, the argument regarding timing could not realistically succeed as a standalone ground of challenge, but was more appropriately situated within the broader proportionality challenge discussed below.

A key question examined by the Court was whether the means adopted by the Commission were proportionate to the objective of maintaining accurate electoral rolls - a standard routinely invoked by courts while assessing restrictions upon constitutional rights. However, the Court’s application of the test appears difficult to reconcile with its own precedents.

In judgments such as Modern Dental College, KS Puttaswamy and Anuradha Bhasin, the Court has understood proportionality to require an examination of whether the measure pursues a legitimate objective, whether it is necessary to achieve that objective, whether less restrictive alternatives are available and whether adequate safeguards exist against abuse. The Court has also previously emphasised that, while imposing restrictions upon constitutional rights, the “least restrictive” measure must ordinarily be adopted.

In the present case, however, the Court adopts a different formulation. It observes that proportionality does not require adoption of the least restrictive measure and that the relevant inquiry is whether the chosen measure is “manifestly excessive”. It observes:

“78. At the outset, we deem it appropriate to clarify that the enquiry under this limb is not whether the Court would have adopted a different or more optimal method, but whether the measure chosen by the competent authority is so disproportionate or manifestly excessive that it cannot be sustained within constitutional bounds. The doctrine of proportionality does not mandate the adoption of the least restrictive measure in the abstract; rather, it requires that the measure adopted must not be palpably arbitrary when viewed against the objective sought to be achieved.”

The Court thereafter places considerable emphasis on the Commission’s institutional expertise and constitutional role, concluding that courts should not substitute their own judgment for that of the Commission in matters involving electoral administration.

The difficulty is not that the Court showed deference to the ECI. Some degree of deference is both expected and appropriate, particularly in matters involving specialised bodies. Rather, the concern is that the judgment appears to reformulate the proportionality standard without identifying the doctrinal basis for doing so and, more importantly, without engaging with the formulation of the test laid down in earlier decisions of larger benches. Further, instead of examining whether less restrictive alternatives existed, the Court appears to focus primarily on whether the Commission’s chosen methodology was so excessive as to warrant judicial intervention.

This distinction is significant because many of the concerns raised by the petitioners were directly relevant to the proportionality analysis adopted by the courts. For instance, while the timing of the exercise could not constitute an independent ground of challenge, the fact that the revision was undertaken only months before elections is relevant when considering whether a less restrictive alternative was available. If the exercise could have been planned and conducted earlier, the burden imposed upon voters and electoral authorities alike may have been substantially reduced. Similarly, the repeated need for judicial intervention during the process - a factor relied upon by the Court as evidence of available safeguards - may equally indicate that the mechanism adopted by the Commission contained shortcomings that required repeated recourse to the courts.

The Court’s reliance upon the availability of the mechanisms of objections, appeals and judicial review as evidence of the non-arbitrariness of the SIR process also merits scrutiny. The Court observes,

“It is equally significant that the Impugned exercise does not operate in isolation but is embedded within a broader procedural framework that includes scrutiny by designated officers, issuance of notice in cases of doubt, and the availability of appellate remedies. These procedural safeguards reinforce the rational connection between the means adopted and the objective sought to be achieved by ensuring that the process of verification is neither arbitrary nor unguided.”

These safeguards undoubtedly provide an important layer of protection. However, the existence of remedies does not necessarily answer the prior question of whether the underlying process is fair. The history of the present case illustrates this point. During the proceedings, the Court directed the Commission to consider accepting additional documents such as Aadhaar, EPIC and ration cards. The Commission also modified certain aspects of the exercise following concerns raised by the Court. These interventions may demonstrate the responsiveness of the process, but they also suggest that there were shortcomings in the process which imposed substantial burdens upon those seeking to establish their right to remain enrolled.

More fundamentally, electoral disputes are unique when compared to other challenges because they operate within fixed timelines. A voter who ultimately succeeds in establishing their right through appeal mechanisms, may nevertheless lose the opportunity to participate in an election that has already taken place - an outcome that effectively deprives them of the very right they seek to enforce. In that sense, exclusion from the electoral roll is not always capable of being meaningfully remedied after the elections.

In the final section of the judgment, the Court issues an important direction concerning citizenship and observes that where the ECI is not satisfied regarding a voter’s compliance with the statutory condition of citizenship for inclusion in the electoral roll it may refer them to the competent authority for adjudication. This aspect of the judgment is surprising for two reasons.

First, if an individual already possesses documents issued by the government supporting their claim of citizenship, it is not immediately clear why the burden of proof should continue to rest upon them. At that stage, any error would appear to lie within the records or processes of the State itself. Yet, the consequence of such a referral is that the individual may be required to once again establish their entitlement before another authority, despite already relying upon documents issued by the State itself.

Second, and more significantly, this was not an issue that was deliberated at length before the Court, the question being limited to whether the ECI itself possesses the authority to determine questions of citizenship. However, by directing that disputed cases be referred to another authority for adjudication, the Court effectively introduces a separate mechanism through which questions of citizenship may be raised by electoral authorities, notwithstanding the absence of any clear statutory framework under the Citizenship Act, 1955 providing for such referrals.

Swapnil Tripathi leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy.

Views are personal.