Judicial drift in the Special Intensive Revision hearings

In the first week of February 2026, in an unprecedented event, the Chief Minister of West Bengal, Mamata Banerjee, appeared before the Supreme Court of India in the ongoing hearings around the conduct of the Special Intensive Revision (SIR) of the electoral rolls, which has been taking place in multiple States across India.

The Chief Minister’s arguments were focused on certain procedural infirmities that were causing hardship to the residents of her State. Her intervention led to the Court passing a slew of directions on February 9, ostensibly seeking to mitigate some of these hardships. However, in the course of the hearing, the Court also made a statement: that no impediment to the SIR would be allowed across any of the States.

Core constitutional challenge not decided

This statement is baffling, because in making it, the Court appears to have pre-judged the most fundamental issue before it — an issue that goes to the heart of the Court’s own role as the primary organ of constitutional adjudication. Challenges to the SIR were first filed before the Court in July, when it was announced for the State of Bihar.

Among other things, these petitions questioned the constitutionality of the SIR itself. Months have passed, with SIRs announced in multiple States, and the challenges have multiplied. The Bihar election has come and gone (November 2025), with the Bihar SIR effectively having become a fait accompli. The Court has held multiple hearings, where it has, in effect, played the role of an administrator, passing directions on issues such as whether or not the Aadhaar card can be used as an identification document. However, the core constitutional challenge has not been decided, and as the Court’s observations now show, the fait accompli seems to have become permanently enshrined, with any future judgment serving only to act as a retrospective validation of existing facts on the ground.

It is worth remembering that in a constitutional democracy, the Court’s primary role is to ensure that other state organs comply with the Constitution, and not to transform itself into an administrator. However, the Court’s conduct in the SIR case is not new: while the constitutionality of the Aadhaar programme was challenged in 2012, it was only in 2018 that a final judgment was passed, by which time Aadhaar had effectively become a fait accompli, too big to be undone. In the intervening six years, the Court had passed various orders about where and how Aadhaar could be used or demanded, but had not touched the constitutional challenge before it. The repetition of this pattern in the SIR case reveals a normalisation of the Court moving away from its role as a constitutional court, and adopting the role of the administrator. This is unfortunate.

There are significant issues

Indeed, the SIR process has raised certain significant constitutional issues. Many of these issues turned upon the question of power: while the Representation of the People Act (India’s umbrella election law) authorises the Election Commission of India (ECI) to conduct a special revision for “any constituency or any part of a constituency”, and for reasons to be recorded, there is a fundamental question about whether this very specific power is also a carte blanche authorisation to conduct State and nation-wide SIRs. The wording of the section seems to imply that its purpose is a targeted and focused exercise meant to correct for distortions that might creep in in certain specific places. By contrast, the present SIRs are dragnet, large-scale revisions of the rolls that, in effect, turn them into citizenship determining exercises. Added to this is the fact that electoral rolls already exist. Thus the ongoing SIRs amount to an exercise where the entire populations of States are called upon to freshly establish their citizenship and their right to vote, without any pre-existing cause for suspicion. The constitutional question then turns upon whether the ECI can simply operate on this mass presumption of non-citizenship, and force people to prove their rights from scratch.

In 1995, in Lal Babu Hussein and Others vs Electoral Registration Officer and Others, the Court had held that it could not. There again, the ECI had sought to effect large-scale removal of names from the voter rolls, acting on the suspicion that in certain constituencies there were many non-voters on the rolls. The Court struck down this exercise, and in the directions that it passed, made it clear that notices for removal from the rolls would have to be directed at specific individuals, and also a disclosure of the reason for suspicion that the individual in question was not a citizen of India.

As noted above, the present SIRs completely invert that basic process. Instead of issuing notices to specific people that it reasonably suspects are non-voters, the ECI now requires everyone to come and prove that they are voters.

It is crucial to note that multiple reports have come in from various States about arbitrary deletions and of individuals having to run from pillar to post to prove that their citizenship does not exist in a vacuum. They are the product of this fundamental inversion of the state-citizen relationship. The other troubling impact of the SIR exercise is that the wholesale revision of voter rolls has brought into play the notorious Form 7, which allows any person to “object” to the inclusion of any other person in the electoral roll. There have already been widespread reports about the misuse of Form 7 to have people struck off the rolls, en masse, from multiple States.

An accentuation of disparities

Finally — and this was something highlighted by the West Bengal Chief Minister as well — in a country with vast material inequalities, and disparities in access to the State, documentation requirements operate asymmetrically, and, in particular, impact the vulnerable and the marginalised (people at the intersection of the axes of caste, poverty and gender). Indian Courts have long articulated an equality jurisprudence that is cognisant of material and socio-political discrimination: a process that accentuates, rather than mitigates, these disparities, violates basic constitutional principles.

It should be obvious that these are not mere “administrative” glitches that can be corrected by administrative tweaks, in the manner in which the Court has been doing for the past eight months. Rather, the specific problems of voter deletions and disenfranchisement that are being brought to the Court on a regular basis are symptoms. They are downstream from the actual issue, which is the manner in which the ongoing SIRs invert the relationship between the state and the individual, and leave the latter effectively at the mercy of the former. This is a question that goes to the heart of the constitutional order. It cannot be remedied through a mere administrative fix. Rather, it must be addressed from the perspective of a constitutional framework that genuinely affirms the dignity and participatory rights of every individual, refusing to reduce persons to mere cogs in the machine of state and administrative efficiency.

Gautam Bhatia is a Delhi-based lawyer

Published – February 12, 2026 12:16 am IST