New Delhi: The Supreme Court on Wednesday questioned whether the Election Commission of India enjoys “untrammelled powers” to depart from statutory safeguards while undertaking the Special Intensive Revision (SIR) of electoral rolls, warning that such authority cannot be allowed to function like an “unruly horse” beyond the discipline of law. A bench of Chief Justice of India Surya Kant and Justice Joymalya Bagchi, hearing a batch of petitions challenging the legality of the SIR exercise in several states including Bihar, said revisions to voter lists can have serious civil consequences and therefore must adhere to the principles of natural justice, including fairness, reasonableness and due process.
The court put several pointed questions to senior advocate Rakesh Dwivedi, appearing for the Election Commission, as it examined whether the SIR process could deviate from the procedures prescribed under the Representation of the People Act, 1950 and the rules framed under it.
The petitioners, which include several opposition parties and the Association for Democratic Reforms (ADR), have repeatedly argued that the Election Commission is not following its own rules and is implementing an SIR framework that departs from established statutory mechanisms for the preparation and revision of electoral rolls.
During the arguments, the Chief Justice took a strict stance on procedural safeguards. He noted that revision of electoral rolls can affect an individual’s civil rights if their name is excluded, and questioned why the process should not comply with Section 21(2) of the Act. “Revision of voter list can lead to some civil consequences for a person who is on the list, so if something will affect the civil rights of people, why shouldn’t the process followed be in accordance with sub-section (2)?” the CJI asked.
Section 21(2) of the 1950 Act governs preparation and revision of electoral rolls and provides that the rolls “shall, unless otherwise directed by the Election Commission for reasons to be recorded in writing, be revised in the prescribed manner” by reference to the qualifying date before each general election and bye-election, and also in any year if such revision is directed by the Commission. The bench indicated that the prescribed manner cannot be treated as a formality when it concerns voting rights.
Justice Bagchi reinforced the concern, stating that “no power can be untrammelled” and warning against allowing discretion to become “completely unregulated”. Even if the court were to accept that the Election Commission has authority for special revision, he asked whether such power could ever be considered beyond judicial review. “No power can be untrammelled, no power can be completely unregulated. While the power should not be diluted, but it should not be left an unruly horse,” Justice Bagchi observed.
Referring to the statutory framework, Justice Bagchi noted that Rule 21 contemplates that when an intensive revision is undertaken, electoral rolls are prepared afresh and specific procedural rules must apply. “Rule 21 has a shackle of some sort. It says if intensive revision is being carried out, rules have to be prepared afresh and rules 4 to 13 shall apply,” he said, asking whether such safeguards could be bypassed.
Dwivedi defended the Commission’s approach by distinguishing between routine revisions and the power of special revision. He relied on Section 21(3), which authorises the Election Commission to direct a special revision “in such manner as it may think fit” for reasons recorded in writing. Section 21(3) begins with a non-obstante clause, stating: “Notwithstanding anything contained in sub-section (2), the Election Commission may at any time, for reasons to be recorded, direct a special revision of the electoral roll for any constituency or part of a constituency in such manner as it may think fit.”
Dwivedi argued that sub-sections (2) and (3) operate in distinct domains. “My submission is that sub-sections (2) and (3) of Section 21 do not operate in the same domain,” he said. He also contended that the Election Commission could not be expected to evolve an entirely new procedure each time it undertakes an SIR, and maintained that the statutory scheme itself supports the steps the Commission has taken.
At one stage, the bench asked if the Election Commission is exempted from its own rules. Dwivedi responded that the Act prescribes the procedure and the Commission is functioning within that framework. He added that special revision powers cannot be exercised arbitrarily, and must still satisfy fairness and due process. “These procedures necessarily include fairness, reasonableness, and due process,” he submitted, stating that the Election Commission cannot violate Article 326 of the Constitution, which guarantees adult suffrage.
Justice Bagchi also questioned documentary requirements under the SIR framework, pointing out that while Form 6 provides for seven documents, the SIR process requires 11 documents. He asked whether the Election Commission could alter prescribed requirements, including excluding Form 6 documents. Dwivedi maintained that Section 21(3) provides flexibility to deviate from the standard procedure, while insisting the Commission would need to satisfy the court that the process was “just, fair and transparent”.
The petitions, led by ADR, have raised concerns about the scope of the Election Commission’s powers, the risk of disenfranchisement, and issues relating to citizenship determination in electoral enrolment. The hearing remained inconclusive and is set to continue on Thursday. The Election Commission had earlier told the court on January 20 that its SIR order was legislative in nature, laying down guiding principles and prescribing documents, and was generally applicable across the country except in Assam.