What does it mean to win your right to vote back…after the election is over? In India, a voter who is wrongly deleted from the electoral roll can eventually prove their exclusion unlawful and, hypothetically, win their name back on the list. But once polling is over, even a successful appeal cannot restore the vote one was never permitted to cast.

Consider two identically, and unlawfully, deleted voters. One wins an appeal just before polling day, while the other wins the same appeal a week later. Legally, both appellants are vindicated. But in practice, only one of them was ever allowed to vote. Given that the Election Commission is currently undertaking Special Intensive Revision (SIR) exercises across much of the country, this conundrum is no longer merely a brainteaser.

On August 25^th, the Supreme Court was confronted with allegations that in 31 West Bengal constituencies, the number of deletions exceeded the margin by which the Bharatiya Janata Party (BJP) defeated the Trinamool Congress (TMC). Further, the Chief Justice's court was presented with an RTI reply stating that out of the 83,000 appeals against exclusions decided so far, over 75,000 have been allowed, meaning nearly 90% of the exclusions were deemed erroneous by reviewing tribunals. The bench's response was noteworthy. Chief Justice Surya Kant asked: “Can the Court direct fresh elections?” Justice Joymalya Bagchi then identified a more precise issue: if, for instance, 100 people were deleted in a constituency decided by 50 votes, but 60 or 70 of those excluded persons actually appealed against their deletion, “the challenge to deletion becomes substantial.”

The exchange from Court Room Number 1 points to an unanswered question that sits uneasily between Indian electoral-roll law and election law: if wrongful exclusion is proved after polling, what can the law restore to a voter who has been wrongly denied the opportunity to participate in democracy?

THE IMPOSSIBLE REMEDY

The law does provide a process for citizens to challenge wrongful deletion from the electoral roll. Under sections 22–24 of the Representation of the People Act, 1950 (RPA), a voter may seek correction or inclusion before the Electoral Registration Officer and appeal an adverse order if still aggrieved. But these safeguards are all built upon the assumption that there is still an opportunity for unlawfully excluded voters to return to the electoral roll before polling. However, once polling ends, any such remedy is rendered largely symbolic. Therefore, while a citizen's name may eventually be restored to the roll, the lost opportunity to vote in that election can never be returned.

These concerns become especially pressing given the efficiency of tribunals set up to deal with such deletion challenges. At the end of 100 days of SIR tribunals in West Bengal, nearly 2 months after results were declared, less than 1% of the appeals had been disposed of. At such a pace, it would take more than 25 years to clear the backlog of challenges brought by voters who allege they were wrongly deleted from electoral rolls in the 2026 State Assembly elections. THE PARADOXICAL THRESHOLD OF PROOF

In most election petitions challenging results, Section 100(1)(d) of the RPA requires the petitioner to show that the alleged illegality “materially affected” the result. But how does one prove the electoral consequences of votes that were never permitted to be cast? Picture a constituency that was decided by a margin of just 500 votes, where 5,000 eligible citizens were wrongly deleted from the electoral roll before polling. Just from a preliminary glance at those margins, common sense suggests that the outcome might have been different if they were included. But the law cannot make that guess.

Instead, because those citizens never voted, there are no ballots to count and there is no reliable way to know whom they would have voted for. Hence the very state action that denied these citizens a vote, simultaneously makes its own impact almost impossible to prove. Perhaps what makes this paradox especially difficult to digest, is that the law does not treat every form of electoral exclusion this way.

THE CONSTITUTIONAL ASYMMETRY

Parliament has already recognised that some electoral wrongs are so destructive to democratic legitimacy, that no further inquiry into their electoral consequences is necessary. Section 100(1)(c) of the RPA treats the improper rejection of a candidate's nomination as an automatic ground for setting aside an election. As the Supreme Court explained in Surendra Nath Khosla v. Dalip Singh [(1957) SCC 137], wrongly keeping a candidate out of the contest hampers democracy by depriving electors of "the best candidate available." Yet when thousands of lawful voters are wrongly kept from voting, the law asks the impossible question of whether that exclusion “can be shown to have 'materially affected' the overall result?”

The irony is jarring: In candidate-exclusion cases, uncertainty is placed on the election; whereas in voter-exclusion cases, uncertainty is placed wholly on the disenfranchised.

A QUESTION OF CONSTITUTIONAL DESIGN, NOT PARTISANSHIP

The debates surrounding the implementation of SIR have largely focused on whether wrongful deletions occurred. That question, although vital to each constituency it applies to, obscures another, more immediately relevant, question: if wrongful deletions are eventually established, what remedy does our constitutional democracy provide?

Justice Bagchi's hypothetical points towards a possible way out of this paradox. The significance of wrongful deletion doesn't need to be assessed by counting every voter that alleges wrongful removal from the rolls. Rather, the relevant question should be narrower: how many of those voters challenged their exclusion and were subsequently found to have been wrongly denied their franchise? Where that number exceeds the margin of victory, the challenge should become, in Justice Bagchi's words, “substantial”.

There is a useful comparative reference point in common law. In Opitz v. Wrzesnewskyj, the Supreme Court of Canada applied the “magic number” test, holding that an election “must be annulled” where the number of rejected votes equals or exceeds the successful candidate's margin of victory. The apex Canadian Court acknowledged that the test was imperfect and expressly left open the possibility that a more nuanced version might be developed in the future. But Opitz' central insight remains especially compelling in the Indian context of SIR-impacted elections: where the number of affected voters exceeds the margin of victory, their exclusion cannot be treated as immaterial just because it is impossible to determine how they would have voted.

Parliament should give Justice Bagchi's formulation statutory force by amending the current electoral statutes to create a presumption that an election has been “materially affected” where the number of voters subsequently proved to have been wrongly excluded equals or exceeds the margin of victory. However, if political will stalls, the constitutional question still looms.

The Supreme Court cannot ignore a remedial gap merely because a precise remedy has not yet been codified. Indian constitutional law has never treated statutory silence as an insurmountable barrier to doctrinal development, especially when fundamental constitutional purposes are at stake. From pith and substance to the aspect doctrine and advisory jurisdiction, Indian courts have repeatedly drawn upon Canadian jurisprudence to develop solutions suited to India's common law influenced constitutional jurisprudence. There is little reason why that willingness to borrow, adapt and develop doctrine should stop here; especially when the constitutional value at stake is the integrity of our democracy.

Ultimately, the Court need not presume whom the excluded citizens would have supported. It only needs to decide who should bear the uncertainty created by their exclusion. Today, the answer is the disenfranchised voter. But Justice Bagchi's comments, read alongside the logic of Canada's Opitz, suggests that it doesn't have to stay that way.

Author is a final year LLB student at Jindal Global Law School. Views are personal.