In late June this year, 23 Opposition parties wrote to the Chief Justice of India (CJI) Surya Kant raising concerns about the state of the electoral process in India’s democracy. The letter reiterated the broad concern that the Special Intensive Revision (SIR) of electoral rolls is exclusionary, and that the framework is burdensome for ordinary citizens. The Opposition’s letter is also a gesture of desperation and disappointment over the Supreme Court of India’s refusal to interfere with the massive and continuous disenfranchisement.
In Why India Votes? (2014), Mukulika Banerjee narrates various encounters with poor ordinary voters. Ms. Banerjee, in the book, referring to Mekhala Krishnamurty’s study, cites an incident: A woman named Rukmini Bai was unable to vote in the elections for lack of proper identification documents. When Rukmini was asked why it was important for her to vote, she said, “My work is to sweep up all the grain that falls from the sacks and the weighing scales on the floor. At the end of the day, I sell what I have collected and I am allowed to keep half the money. That is my income. So you see, I understand the value of each grain of wheat. On the floor they look insignificant, just one isolated grain of wheat, but each grain that is added to the heap determines what I earn. My vote is like those grains of wheat.”
For any citizen of a democracy, exercising the right to adult franchise is vital. But for those who have been marginalised from mainstream society, voting becomes a powerful political act. It reaffirms the recognition that they and their votes matter, and that they count as much as those of the privileged. This is why the long queues at polling booths, without class, caste, or income disparities, turns out to be a beautiful image of a functioning democracy.
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What the SIR exercise initiated by the Election Commission of India (ECI) has done is to poke at the heart of this electoral enfranchisement. The modalities in which the ECI has invoked this process are also significant. The ECI has been successful in creating an atmosphere of anxiety for citizens, in a matter closely tied to their political identity. The right to vote is a significant facet of political expression envisaged by the Constitution. This right is now, however, submerged in an entire overarching framework consisting of documentation, inquiry into lineage, appeals and as scholar Rudraksh Lakra calls it — ‘digital structural authoritarianism’.
When the basic structure of a democracy is directly attacked by the executive, the kind of response by the Court — a counter-majoritarian institution — deserves serious study. When a politically aggressive state battles the powerless individual with the entire state machinery at its disposal, one looks at the Court, equipped with the constitutional tools to limit state power.
The Bihar SIR case was adjudicated by the Bench led by the CJI on May 27, 2026. However, this decision came long after the election was over. The Court also has a disappointing history of postponing the final decision in cases after the state action in question has been already operated or implemented.
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Therefore, as in the cases challenging demonetisation (2016) and the abrogation of the special status of Jammu and Kashmir, by the time the legality of the SIR was decided, it had become a fait accompli. This is the primary failure of the Court — not determining the dispute when time is of the essence.
Second, the way in which the Court oversaw the process was problematic. Unlike the cases where executive action is under judicial scrutiny, in the Bihar SIR, the Court actively involved itself and facilitated the so-called revision that led to deletion of several lakhs of voters. By virtue of several interim orders and a multitude of directions, the Court effectively administered the process. One finds a clear judicial abetment to the electoral process making it a collaborative exercise — quite unprecedented in the country’s history. The Court’s nature shifted from a forum of judicial review to an administrative body.
Third, the ex-post facto endorsement. In the Bihar SIR case, it was nevertheless crucial how the Court would substantively conceptualise the dispute. This was also determinative for other State elections, particularly in Assam and West Bengal. One could frame the narrative in either of two ways: first, as a technical question concerning the competence and powers of the ECI; and second, as a question of deprivation of rights.
In formulating the questions themselves, the Court leaned towards the former rather than the latter. Barring a singular question on proportionality and legitimacy, all other issues were misidentified. This is why there is no effective deliberation on the legality of the process, particularly with regard to its vagueness and lack of reasoning. The disproportionate administrative demand for (often impossible) paperwork, rigid time limits, and the discriminatory impact on minorities, women, and the migrant population were overlooked. In the adjudicatory exercise, there was no appreciation of the social realities of illiteracy, poverty and lack of institutional access for a substantial number of voters. Ultimately, the Court decided in favour of the ECI on all the issues.
Long ago, the liberal thinker Murray Rothbard, relying on the scholar Charles Black, noted that: “the state has …. largely transformed judicial review itself from a limiting device to yet another instrument for furnishing ideological legitimacy to the government’s actions.” In his classic work, The Politics of the Judiciary (1977), J.A.G. Griffith also exposes the judiciary’s natural inclination towards the political branches of the state.
The Indian Supreme Court is one of the most powerful institutions in the world. Many decisions of the Court seemingly involving legal questions are essentially political questions. Therefore, it is necessary for the political Opposition to evaluate and criticise the fundamental aberrations in the judicial realm. This is part and parcel of the function of the Opposition, in today’s critical times.
Manufacturing endorsements to support continuing executive excesses is symptomatic of any authoritarian regime. It is important to recognise that India is evolving into a system in which institutions have lost neutrality, as acknowledged by the Leader of the Opposition in the Lok Sabha, Rahul Gandhi, in his speech at the recent INDIA bloc convention.
It is also becoming clearer that any radical change in the polity through the judicial process is unlikely. There is a recent global trend of expanding oppositional politics beyond conventional methods to people’s movements. India’s democracy must embrace such political praxis.
Kaleeswaram Raj is a lawyer at the Supreme Court of India; Thulasi K. Raj is a lawyer at the Supreme Court of India
Published - July 14, 2026 12:16 am IST