On April 13, Justice Joymalya Bagchi said out loud what should have, by then, become impossible for the Supreme Court to ignore.

What if, he asked, the winning margin in a constituency in the West Bengal election is 2 per cent, but more than 15 per cent of the electorate could not vote? In other words, Justice Bagchi articulated, clearly, the obvious constitutional and political problem of a close or tight election. A State that the BJP government is most interested in winning at any cost is being shaped by the mass exclusion of voters.

The judge, part of the bench headed by Chief Justice of India Surya Kant, noted that the Election Commission of India had indeed introduced, only in West Bengal, a fresh category of “Logical Discrepancy” voters (a list of “doubtful voters”) which is not found in any other States.

Over 34 lakh appeals filed by voters not included in the voters list—including 27.16 Lakh from the Logical Discrepancy list—have been pending before 19 Appellate Tribunals in the State. They will not be able to vote in the upcoming State election scheduled for April 23 and 29.

The commission, Justice Bagchi also said, had “deviated” from its “unequivocal” position in the Bihar SIR litigation that those mapped in the 2002 rolls need not submit documents, and then accused the ECI of “deviating” from that position in West Bengal. He also wondered that in a mass exercise of this kind, what if the “margin of error” in inclusion or exclusion of a voter was itself large enough to contaminate the democratic outcome.

One should look at these statements as partial and uneasy admissions that the SIR process before the Supreme Court was capable of producing a grave democratic injury.

Yet, surprisingly, the bench refused to allow those lakhs of affected voters from voting in this election. Justice Bagchi observed that the election process cannot be interfered with unless and until there is an “enormous amount of voter exclusion”. Yet, this is exactly what the petitioners challenging the SIR process have been shouting about in the courtroom for months now.

This contradiction, between the justice’s apt observations and the court’s severely wanting decisions, captures the tragedy of the Supreme Court’s handling of the SIR challenge. For months now, in a batch of petitions that goes to the heart of universal adult franchise and the legality of electoral administration, the court has refused to do the one thing a constitutional court is supposed to do first: decide whether the challenged state action is lawful at all.

That is the first and most basic point. When a constitutional court is faced with state action that is alleged to be unconstitutional, ultra-vires a statute, and destructive of democratic rights, how can it begin by fine-tuning the implementation of this action?

It ought to have first answered the prior question: Is the action legal? If it is not, the action is stopped. If it is, the court may then ensure that it proceeds within constitutional boundaries. However, the judgment on SIR’s constitutionality has been pending since it was reserved in January this year by the Justice Kant bench.

The problem with SIR

The petitioners’ challenges raise serious questions of statutory illegality and constitutional violations. They contend that the SIR departs from the framework laid down under the Representation of the People Act, 1950, and the Registration of Electors Rules, 1960. Under Section 21(2) of the RPA 1950, electoral roll revision is to take place “in the prescribed manner”, that is, in accordance with the statutory rules (Rules 1960). The Election Commission, they say, has adopted a procedure that is unknown to those rules.

Under the present SIR, failure to submit the enumeration form can result in exclusion from the roll. In effect, the burden has been shifted from the electoral machinery to every individual voter to re-establish their existence. Citizens who are already on the rolls are being asked to re-establish themselves through forms, documents, and hurried bureaucratic encounters, failing which they risk deletion from the voters roll. That, the petitioners argue, is ultra-vires the rules.

They further argue that the commission cannot invoke Article 324 of the Constitution—which gives it “superintendence, direction, and control” over preparation of electoral rolls—to override a statutory framework already enacted by Parliament. That principle, they point out, was settled long ago by the Constitution Bench in Mohinder Singh Gill v. Chief Election Commissioner (1977). The court had clearly held that where Parliament has legislated, the ECI must act within that law, and can fall back on Article 324 only in spaces “left unoccupied by legislation”.

That position has not been abandoned and has been reiterated across many decades, and as recently as 2018. In other words, the commission cannot create a new procedure by executive notification and then justify it by pointing to the Constitution. Once the field is occupied by statute and rules, it must stay within them.

The commission has also sought refuge in Section 21(3) of the RPA 1950, which allows for a “special revision” in “any constituency or any part of a constituency in such manner as it may think fit”. The objections to this argument are worth serious consideration of the court.

Section 21(3) is not a free-standing charter for a pan-state or nationwide redesign of electoral procedure. It is an exceptional power and is geographically limited since it uses the phrase “any constituency or any part of a constituency”. It requires reasons for using such a measure to be recorded in writing. And this is not meant to become a parallel route by which the ECI may escape the usual procedure of Section 21(2) which is bound by the 1960 Rules.

That, however, is precisely what appears to have happened. The commission’s reliance on Section 21(3), while ignoring Section 21(2), is a clear case of evading the procedural safeguards that Rules 1960 carry.

These concerns go to the root of the legal validity challenge of the entire SIR exercise. They ought to have been confronted at the very outset. But the bench headed by Chief Justice Kant has, for reasons best known to them, refused to confront these questions of law.

The consequences

The human consequences of that failure are now starkly visible.

In West Bengal alone, 34 lakh persons have been stopped from voting in this election. Of the over 90 lakh names struck off, more than 60 lakh were categorised as absentee or deceased voters. Of the remaining, 27.16 lakh were persons whose cases remained unresolved (Logical Discrepancy category) and were pushed before the 19 Appellate Tribunals. But those Tribunals are overworked.

This is why the Supreme Court’s conduct deserves scrutiny not merely as an episode of institutional weakness, but as another case study in judicial abdication. On a side note, every time someone has written that such-and-such case is the “perfect case study” of judicial abdication of duty, the Supreme Court has proven them wrong.

The court’s first major failure lay in refusing to decide legality before it began effectively administering the SIR.

Instead, it moved into a managerial role. It chose to supervise publication formats, online submission mechanisms, party participation, and later even used its “extraordinary powers” to allocate judicial manpower on account of “trust deficit” in the process, while leaving the underlying legality question unresolved.

One must ask whether, by running an executive programme, the court does not risk laundering the exercise’s legality through judicial participation? Does not a process become progressively harder to declare unlawful once the Supreme Court itself has spent months shaping, modifying, and overseeing it? Any later invalidation then begins to look like the court retrospectively condemning its own conduct.

The second failure was the denial of meaningful interim relief despite obvious urgency. The Bihar phase of the litigation had already presented the central issues—power, procedure, and timing. The court knew that if it did not protect the status quo or preserve enfranchisement while deciding those questions, the challenge risked being overtaken by events. Yet that is precisely what happened.

Justice Bagchi’s remarks on April 13 only sharpen this indictment. Yet, none of it translated into relief. That is what makes the hearing so disturbing. The bench seemed capable of diagnosing the disease but was completely unwilling to prescribe the cure.

Justice Bagchi’s remarks also came after he had drawn criticism for saying, on April 1, that if someone could not vote in this election, it did not mean the right was being denied forever. That remark rightly attracted outrage for not just the insensitive tone but for the denial to vote in a time-bound and sensitive State election. That denial of the vote now is the only denial that matters. It is bound to benefit the BJP’s electoral arithmetic.

A right deferred beyond the election is, in all practical terms, a right defeated. The shift in tone on April 13 suggests that the criticism was registered. But the bench still refused to act on the logic of the judge’s own concerns.

The third failure was the court’s steady transformation into an administrator. In Bihar, it dealt with how lists should be published, how corrections should be facilitated, and how parties could assist voters. In West Bengal, it went even further. It entered into issues of portal design, online architecture, and institutional management. It effectively subordinated software changes and process adjustments to judicial supervision.

This is extraordinary. A constitutional court is not supposed to become the secretarial desk of an executive exercise whose legality is under challenge. Once it enters that terrain, the lines of accountability obviously begin to blur. If disenfranchisement follows, the court can always say it tried to make the process fairer. But who will tell the judges that that is not the court’s primary constitutional role? Its primary role is to determine whether the ECI was entitled to embark on the process in the first place.

The fourth failure was even graver: the enlistment of the state judiciary into an exercise adjacent to mass disenfranchisement. On February 20, the bench used its “extraordinary powers” to deploy judicial officers to decide claims for inclusion and exclusion and to speed up completion of the SIR. In doing so, it did two kinds of institutional damage at once.

One, it converted judges into cogs in a fiercely contested, politically fraught executive programme, compromising the appearance of distance and independence that judicial officers are supposed to retain.

And two, it displaced ordinary judicial work, compelling the courts to reorganise themselves around ECI timelines rather than constitutional urgency. The Supreme Court itself recognised that the arrangement was “extraordinary”.

The fifth failure was subtler but no less alarming: the normalisation of disenfranchisement as a “margin of error”. Justice Bagchi’s observations about how large-scale processes inevitably produce mistakes may sound administratively realistic, but constitutionally, they are chilling. They convert wrongful exclusion from a rights violation into a tolerable by-product of scale.

This statement, coupled with his April 1 remarks, show how democratic rights are not to be understood in a democracy. The wrongful deletion of even a single eligible voter—forget mass disenfranchisement of this magnitude just days before a crucial election—is a constitutional injury.

Even worse was the court’s flirtation with an outcome-based threshold for any intervention with elections. It suggested that it may intervene depending on whether the winning margin was smaller than the number of excluded voters.

That moves the discourse from rights to arithmetic. It implies that disenfranchisement becomes constitutionally serious only if it is outcome-determinative. But the right to vote is not protected only when it can swing a result. It is protected because citizenship in a constitutional democracy demands it.

In any case, such promises have been made in the past, but records will reveal how they were not honoured (for instance, in the Maharashtra MVA government toppling case). Besides, the court wouldn’t have the time to give a time-bound verdict in any contested election results from Bengal.

One can draw a conclusion that the language of the Supreme Court in the SIR case suggests that it has conceded too much already. That is perhaps the most troubling feature of this entire saga. The Supreme Court has simply failed to stop a controversial, legally questionable electoral exercise that was started merely months before a sensitive State election with neck-breaking urgency by a Commission that has left no doubts about its political leaning.

Worse, much like the 2025 Delhi State election, the Supreme Court has made itself an active player in the West Bengal election. In doing so, it has ceased to look like a constitutional court standing between the citizens and an increasingly authoritarian state and has instead begun to look like the anxious co-manager of an executive project whose democratic consequences it can see and articulate, yet cannot bring itself to halt.

Saurav Das is an investigative journalist writing on law, judiciary, crime, and policy.

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