There is a peculiar burden that a court acquires when it narrows its own precedents. It must then keep returning to clean up the consequences of that decision. The Supreme Court (SC) may now have such a problem with the Election Commission’s (ECI) Special Intensive Revision (SIR) exercise.
There is an uncanny symmetry to what is unfolding. In 1995, under Chief Justice AM Ahmadi, the Supreme Court answered two questions that have now returned. Can the State dislodge an existing voter, and can the Chief Election Commissioner (CEC) unilaterally exercise the ECI’s powers? The Court answered with firm guardrails. In Lal Babu Hussein v. ERO, dealing with mass deletions from electoral rolls, the Court held that once a voter’s name appeared on the rolls, there is a presumption of validity. Its removal would have to be justified by the State with notice and hearing. In TN Seshan v. Union of India, it rejected the idea that the CEC stood above the other Election Commissioners, warning that they could not be reduced to “non-functional or ornamental” positions.
Thirty-one years later, one of those guardrails has already loosened. In answering the challenge to the Bihar SIR, the Court applied an extraordinarily narrow reading to Lal Babu. It held that inclusion in an earlier electoral roll is not a “perpetual guarantee”, and that, since errors can occur, asking voters to produce material to find their way back onto the rolls is permissible. In doing so, it de-fanged one of the Court’s strongest voter protections.
{{/usCountry}}Thirty-one years later, one of those guardrails has already loosened. In answering the challenge to the Bihar SIR, the Court applied an extraordinarily narrow reading to Lal Babu. It held that inclusion in an earlier electoral roll is not a “perpetual guarantee”, and that, since errors can occur, asking voters to produce material to find their way back onto the rolls is permissible. In doing so, it de-fanged one of the Court’s strongest voter protections.
{{/usCountry}}The consequences of this are now arriving. More than 130 million names have been excluded from draft rolls across 30 states and Union territories. Of the 3.82 million appeals filed, barely 2% have been disposed of; 91% of those resulted in restoration. In Goa, 97 citizens who had won their appeals remained off the rolls because the software didn’t permit the correction. In Delhi, 3.3 million voters have received notices. These include families of former CJIs, bureaucrats, and prominent lawyers.
And then came the Indian Express expose, setting the cat among the pigeons. It reported that Election Commissioners (ECs) Sukhbir Singh Sandhu and Vivek Joshi had objected at least 14 times over ten months to decisions concerning voter registration, deletion, and restoration. In the case regarding Form 6, they described the change as “unauthorised and illegal”. It is a serious charge.
Section 18 of the 2023 Act requires the Commission to decide matters unanimously or by majority. While the facts are yet to be established, if the records show that decisions were taken by the CEC, Gyanesh Kumar, alone, then it would mean the decisions were unlawful. It would also mean that the SIR exercise was contaminated. A petition now seeks to invalidate decisions allegedly taken without the concurrence of the Commission. Another seeks judicial inquiry and criminal proceedings against Kumar for alleged manipulation of rolls.
The timing, too, is awkward. On the same day that the expose broke, Justice Dipankar Datta, hearing a separate challenge to the 2023 law governing appointment of ECs, said that the ECI must not merely be independent; it must be seen to act independently. Still, the Court does not appear entirely of one mind. On September 28, CJI Surya Kant declined to urgently hear the West Bengal SIR plea ahead of the bypolls, saying, “These are only by-elections.” On October 4, Justice Bhuyan described the disenfranchisement of millions of citizens as “strik(ing) at the heart of the Constitution.” The next day, the Court declined to suspend Kumar but sought the ECI’s response to the allegations while making clear that SC had not approved the modified Form 6.
This is where the Court may find a monkey on its own back. The Court had upheld the SIR exercise, which may now be found to be legally compromised. If it is ultimately established that the Commission did not function as legally required, the Court will have to reconcile that finding with its earlier judgment. And it will bring it back to another precedent, from the same year and the same Chief Justice. Will Seshan survive this test as a meaningful limit on the CEC, or, like Lal Babu Hussein, be preserved in name while being emptied of consequence?
And then comes the question that is the elephant in the room. If SIR decisions are ultimately found to have been taken without lawful authority, what is the legal status of every election that followed from it?
Insiyah Vahanvaty is a socio-political commentator and author of ‘The Fearless Judge’. Ashish Bharadwaj writes on higher education, technology, and patents. The views expressed are personal