A primary feature of constitutional democracies is limitation on state power. In this context, the judiciary's foundational role is not merely adjudication but also enforcing those constitutional limits. In a recent judgment upholding the Election Commission of India's (ECI) Special Intensive Revision (SIR) of Bihar's electoral rolls, the Supreme Court deployed a series of interpretive choices that disabled it from performing this foundational role. This article reveals that the Court's textual overreliance and inverted logic repeatedly granted the widest possible latitude to the ECI, and incorrectly validated the SIR.

What is the ECI's power?

Art. 324 of the Constitution empowers the ECI to conduct elections and revise electoral rolls. Further, Art. 327 authorises Parliament, 'subject to the provisions of this Constitution', to enact laws on election matters including the revision of electoral rolls. The Court read the opening words in Art. 327 — 'subject to the provisions of this Constitution' — to mean that while the ECI must act in conformity with parliamentary law, it enjoys an overriding constitutional mandate. Additionally, where parliamentary law is inadequate to meet 'emerging contingencies', the ECI is 'empowered to take necessary steps' to ensure the accuracy of the electoral process. This raises two essential questions: (1) Who decides whether parliamentary law is inadequate? and (2) What necessary steps are required to tackle that inadequacy? Although not expressly answered, the Court's deferential approach demonstrates that it is the ECI itself that will determine whether parliamentary law is inadequate and once the determination is made, the Court will not meaningfully review it. Such an interpretation of the ECI's powers renders a detailed analysis of the parliamentary scheme under the Representation of the People Act, 1950 (the Act) unnecessary: the only limit on the ECI's powers is that it cannot act contrary to an express statutory prohibition.

Nevertheless, the Court proceeded to distinguish between the ECI's power of ordinary revision under S. 21(2) of the Act and special revision under S. 21(3) of the Act. Ordinary revision of the electoral roll must be conducted as per the 'prescribed manner' and special revision may be conducted in 'such manner as it (the ECI) may think fit'. The Court held that while the ordinary revision process was bound by a 'prescribed manner', no such restriction existed for the special revision. Consequently, the rules formulated under the Act — the Registration of Electors Rules, 1960 (the Rules) and the safeguards of notice, hearing and appeal therein— did not apply to the special intensive revision. According to the Court, the sole limitation on the special revision power was a requirement to record reasons for its invocation. It described this as a 'substantive safeguard'. It is a cardinal principle of law that a wider power demands a greater burden of justification than a normal power. As Yogendra Yadav points out, the reasons for the special revision — deceased electors, migration, duplication — are the same grounds on which ordinary revisions proceed. The only distinction made out was one of scale. The ECI argued that since the last SIR was conducted in 2003 and only summary revisions were conducted thereafter, systemic defects had crept into the electoral roll. However, this claim was never judicially tested. The Court refused to demand any empirical evidence from the ECI and deferred to the ECI's 'common administrative experience'. This rendered the 'substantive safeguard' to record reasons entirely illusory.

Moreover, the Court failed to ask the ECI why it had not exercised its ordinary revision powers properly since 2003 and allowed systemic defects to arise in the first place. The Court's deferential attitude towards the administrative experience of a constitutional body that by its own admission has failed to properly exercise even its ordinary powers for 22 years is improper. A constitutional body should not be permitted to justify the exercise of its extraordinary, rights-restrictive powers by citing a systemic problem of its own making. Further, as Vasudev Devadasan points out, even if systemic defects in the rolls existed, the power of ordinary revision provides for an intensive revision exercise where rolls are prepared afresh. The Court never engaged with this alternative. Effectively, the Court's reasoning treated the procedural safeguards in the ordinary revision power as a reason for their unsuitability to the present situation. Procedural safeguards exist precisely to limit power; their exclusion on that basis is untenable.

Safeguards on paper

The deferential interpretive choices of the Court are most sharply observed in its evaluation of the proportionality of the SIR vis-à-vis the elector. The central justification in this analysis is that affected electors were protected by adequate safeguards. The Court's analysis falsely equates the procedure in the SIR guidelines with the individualised protections in the Rules.

As per the Rules, before a decision on deletion can be made, the registration officer must identify specific errors, exhibit a list, and make every endeavour to provide the affected individual a reasonable opportunity to show cause. Subsequently, if a person's name is deleted, they are entitled to file an appeal before an appellate officer. The SIR inverts this sequence: automatic deletion from the electoral rolls precedes the exercise of any 'safeguards' including even notice of the deletion. First, electors on the existing roll who failed to submit enumeration forms were excluded from the draft electoral roll and subjected to the same documentary requirements as first-time applicants. At this stage, 65 lakh electors were automatically removed without notice or hearing. Second, it was only after the publication of the draft electoral roll that requirements of notice, reasoned order for deletion and a two-stage appellate mechanism became operational. Even at this later stage, in order for the 'safeguards' to be meaningful, they must be capable of being realised in a compressed timeline: from the date of publication of the draft electoral roll (1^st August) to the last date for additions to the electoral roll (7^th October and 10^th October for specific constituencies). This meant that the ECI was tasked with simultaneously issuing individualised notices to nearly 3 lakh electors on the draft electoral roll while processing 16.56 lakh claims for inclusion and 36,475 claims for re-inclusion from among the 65 lakh electors it had excluded. Further, 3.66 lakh electors in the draft electoral roll were removed in the final list. Even if the ECI was successful in the impossible task of giving individualised notices and writing reasoned orders for lakhs of electors in a compressed timeframe, at the very least, it left no time for a meaningful appellate remedy for those excluded in the final list. This alone contradicts the Court's conclusion that the safeguards in the Rules had been 'operationalised' in the SIR guidelines.

Throughout its analysis, the Court was overly concerned with the accuracy of the electoral roll and allowed this concern to distort its approach to the questions before it. In doing so, it failed to recognise that the power to revise the rolls cannot be deployed in a manner that defeats the eligible citizen's vote — the very asset the ECI is constitutionally mandated to protect. The Court's refusal to either limit or scrutinise the ECI's power in any way amounts to a failure to discharge its own constitutional role of limiting governmental power and protecting rights via adjudication.

Author is an Advocate practicing at Punjab and Haryana High Court. Views are personal.