Supreme Court's SIR Verdict Marks a New Low For an Already Compromised Judiciary

On May 27, as a two-judge bench of the Supreme Court, comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi, delivered its final judgment on the constitutional validity of the special intensive revision (SIR) being conducted by the Election Commission of India (ECI), it resembled several major pro-regime rulings delivered by the top court in over a decade of the Modi government. Such rulings have provided judicial legitimacy to the ideological and political projects of the Bharatiya Janata Party (BJP) and the Sangh Parivar – the Babri Masjid dispute, those concerning Kashmir, UAPA-related bail jurisprudence, and EWS reservations – contrary to the constitutional and democratic principles of the country.

However, there is a difference. For instance, though the final and conclusive part of the Babri-Ayodhya judgement upheld the majoritarian viewpoint, the earlier part at least pretended to reprimand the act of demolition of the mosque. This SIR judgement, on the contrary, has shelved all the pretensions and upholds each and every argument made by the regime from beginning to the end. 

The reasoning adopted by the top court in upholding the SIR process demonstrates that the Indian judiciary severely suffers from strategic deafness in the Modi era. This is a grave symptom of Indian judiciary heading closer to its institutional decline.

Petitioner and activist Yogendra Yadav is, perhaps, correct in comparing the judgment to the ADM Jabalpur case, which is widely regarded as one of the darkest moments in Indian constitutional history, and where the Supreme Court upheld the suspension of citizens’ fundamental rights including right to life during the Emergency. Senior advocate Sanjay Hegde similarly observed that such “ADM Jabalpur moments” have become recurring features across successive Chief Justices’ tenures. 

The SIR judgement is, however, a new low. In ADM Jabalpur ruling, at least Justice H.R. Khanna’s dissent, defending constitutional morality and civil liberties, was historically significant. In contrast, in the SIR ruling, there seems to be a curated consensus in the present judiciary.

The whole judgement is premised on the wrongful assumption of considering SIR as a ‘special’ but also routine exercise warranted by peculiar developments in the last three decades in the country, namely urbanisation and migration. The Supreme Court demonstrated its strategic blindness as to how, on the ground, it is functioning as a process akin to the contentious National Register of Citizens (NRC).

The “successful” SIR across 13 states has already generated significant disruption, anxiety, and discriminatory targeting of oppressed communities and minorities, particularly Muslims. In West Bengal, despite the judicial intervention, the SIR process has disenfranchised at least 27 lakhs voters – the constitutional mandate which the ECI betrayed – under the watch of the Supreme Court.

In spite of this, the top court upheld SIR as an advancement of the constitutional goal of free and fair elections.

Questions that were placed before Supreme Court

The following constitutional questions regarding SIR were placed before the Supreme Court:

1. Does the Election Commission’s SIR exercise possess constitutional validity? 
2. Are the objectives of the SIR legally valid? 
3. Are the procedures designed by the Election Commission proportionate and appropriate to achieve those objectives? 
4. Does the Election Commission possess the authority to examine or verify citizenship? 

Within the framework of these four broader questions, the top court also considered several related issues:

• Whether the procedures adopted for implementing SIR caused large-scale hardship to citizens; 
• Whether the time frame prescribed for implementing SIR was reasonable; 
• Whether alternative and less harmful mechanisms could have been adopted instead of SIR. 

Even though the CJI-led bench discussed these issues across its 124-page judgment, it ultimately rejected the argument, evidence and documentation presented by the petitioners. Conversely, the top court accepted in full the ECI’s argument, which is glaring, even for a compromised judiciary. 

Also read: Why SIR is Not a One Off, But An Act With Consequences Down the Ages

Most significantly, the Supreme Court accepted without sufficient scrutiny the ECI’s claim that SIR had periodically been conducted in the past. While the SIR entails verification of documentary evidence of every citizen before endorsing one's citizenship, the last Intensive Revision (IR), that was held in 2002-03, or the earlier IRs never entailed such an investigative exercise.

Constitutionality of SIR

According to the Supreme Court judgement, Articles 324, 325 and 326 of the Constitution of India grant the ECI the authority to conduct ‘free and fair’ elections, including the preparation and maintenance of electoral rolls, and that the commission possesses the power to adopt new procedures under existing law in order to fulfill these constitutional responsibilities.

The judgment also refers to Article 327, which states that the Election Commission’s powers remain subject to laws enacted by parliament. In this regard, parliament has enacted the Representation of the People Act, 1950, along with subsequent amendments especially 21 (3) in 1956, and the Electoral Roll Revision Rules of 1960.

Yet, the bench concluded that the SIR process did not violate any of these statutory provisions, effectively rejecting the petitioners’ argument that SIR introduces a citizenship verification procedure that had never previously formed part of electoral roll revision exercises – it was always meant to include, not exclude.

According to the petitioners, neither the Representation of the People Act nor the 1960 Rules authorise the election commission to make final determination of one’s citizenship or exclude them from voter list before its determination by a competent authority. The SIR, however, has already disallowed lakhs of citizens from voting. As a result, the ECI, through SIR, has established two citizenship regimes – with and without voting rights.

This goes completely against the constitutional mandate given to the EC. 

The Supreme Court accepted the Union government’s argument that citizenship is not merely linked to voting rights, but constitutes the basis for membership in the political community of the nation-state. The judgment further observed that citizenship is neither unconditional nor immutable, but a status governed by legal conditions that may evolve over time. Consequently, the Court appeared to endorse the proposition that proof of citizenship at one point in time does not permanently settle the question for all future purposes.

This reasoning and judicial empowerment of ECI is very dangerous since it provides  Election Commission broad constitutional authority not only for SIR but also for conducting more stringent exclusionary exercises.

In fact, the constitution, anticipating such contingencies, had inserted Article 327, which subjects the power to the laws enacted by the parliament. The SIR judgement takes the middle path by acknowledging the autonomy of ECI in implementing its constitutional mandate, along with the parliament's authority to make laws governing modalities of the poll body. In doing so, it utterly fails to admit that the ECI is not autonomous beyond the constitutional goal of equal citizenship and equal voting rights. 

Blind endorsement of legitimacy of the SIR goals

According to the ECI, India has experienced extensive urbanisation and migration since 2003, while no nationwide SIR exercise had been conducted during that period. The commission argued that these developments increased duplication and inaccuracies in electoral rolls, thereby necessitating SIR.

The Supreme Court accepted these claims without rigorous examination. The court also accepted the ECI’s assertion that SIR-like exercises had been conducted 10 times prior to 2003.

Also read: Why I Didn't Go to the Supreme Court Today to Hear its SIR Order: Yogendra Yadav

The petitioners argued that existing mechanisms such as periodic IRs were already sufficient to maintain accurate electoral rolls with adequate accuracy and purity. They questioned why an extraordinary process involving citizenship scrutiny was necessary and further asked what statutory basis authorized such a mechanism. The top court did not meaningfully engage with these questions.

The ECI, in fact, failed to provide any empirical data establishing the relationship between urbanisation, interstate migration and large scale electoral roll inaccuracies. Nor did the poll body provide statistical evidence demonstrating that states where SIR had already been implemented experienced measurable improvements in electoral roll accuracy. Despite this, the Supreme Court accepted the commission’s arguments in entirety.

Endorsement of bogey ‘illegal immigrants’ claim

The Union government’s principal justification for the SIR – as is the election commission’s – is the claim that large numbers of illegal migrants are entering India from neighbouring countries, making SIR necessary to identify and remove such individuals from electoral rolls.

Neither the ECI nor the government has produced any verified data establishing this influx of undocumented migrants in the country. 

Since this is the prime premise for conducting and devising a nationwide SIR, which potentially could potentially suspend citizenship of crores of citizens till proved otherwise with specific documents, such claims by the ECI should have been probed by the Supreme Court on stricter constitutional, judicial and administrative parameters. 

The irony is  the Union government recently constituted a separate demographic commission to study the impact of undocumented migration in India, which is expected to submit its findings next year. This indicates that the government presently lacks any empirical evidence for the claims it has made regarding illegal immigration and which the Supreme Court has blindly accepted.

The Election Commission has not even disclosed how many alleged undocumented migrants have actually been identified through SIR in the states where the process has been completed.

How could the Supreme Court then approve the legitimacy of the SIR? Is it not a case of an irresponsible and unethical doctor prescribing a remedy before diagnosing the disease itself?

Punishment despite crime unproven

The Supreme Court has sanitised the ECI’s attempt to complete the SIR process within an extremely short period of three to four months across the states that recently went to polls, including Bihar and West Bengal. The top court also held that no substantial harm has been caused to the public, despite the countless reports of anxieties, suicide of BLOs and anarchy among affected citizens that the SIR process has caused.

The Supreme Court’s ignorance to the ground reality is most disturbing in the deafening silence about the Bengal disenfranchisement, which speaks volumes about the quality and polity of the judgement 

Furthermore, reports indicate that between 10-20% of voters had already been excluded from original electoral rolls across states that underwent SIR – amounting to more than 7 crore voters – but the Supreme Court, nevertheless, concluded that the consequences of the SIR exercise were not “disproportionate.” 

In paragraph 95 of the judgement, the Supreme Court declares:

"The post-exercise data placed on record does not disclose a level of disenfranchisement so wide spread or systemic as to indicate a constitutional infirmity in the design of the exercise. While individual cases of exclusion may arise, they are addressable within the framework of claims, objections, and appeals that have been provided."

And about the hardship it cause to the people, in para 96, the top court demonstrates its callous casualness and constitutional irresponsibility as:

"Irrespective, we are cognizant of the fact that an exercise of this magnitude carries the potential to cause hardship, particularly to those who may face difficulties in complying with procedural requirements. However, the doctrine of proportionality does not demand the elimination of all hardship; it requires that such hardship be mitigated through appropriate safeguards."

What explains the Court’s reliance on procedural safeguards as sufficient to mitigate hardship, when a process it monitored in West Bengal resulted in the disenfranchisement of more than 27 lakh people? Why did such large-scale exclusion not raise concerns about the risks inherent in the SIR process?

ECI’s contradictory reasoning

The Supreme Court upheld the Election Commission’s authority to examine one’s citizenship while determining eligibility for voting rights among Indian citizens above the age of 18. It also stated that while the ECI lacks final authority to conclusively determine citizenship status, it nevertheless possesses the authority to decide whether an individual should be granted or denied inclusion in the electoral roll.

This reasoning is internally contradictory. 

The ECI itself argued in paragragh 171 of the judgement that any final determination regarding citizenship would ultimately depend upon adjudication by the competent statutory authority, that exclusion from electoral rolls prior to such final determination effectively deprives individuals of meaningful political participation and citizenship. The top court should have referred it to a constitutional bench instead of determinising this serious question arbitrarily. 

Citizenship is fundamentally tied to participation in the political community, particularly through the right to vote. From this perspective, the concern is not merely that the SIR process verifies citizenship, but that it may remove millions of individuals from electoral participation before any conclusive legal determination regarding their citizenship status has been made.

The Supreme Court did not regard this as an issue of constitutional injustice. Instead, it accepted the argument that citizenship itself is not an unconditional right and may require repeated verification over time. 

Incorrect reading of Lal Babu Hussain judgement

In the 1995 judgment in the Lal Babu Hussein case, a three-judge bench of the Supreme Court had clarified the relationship between citizenship and voting rights. The judgment had recognised prior participation in elections as important evidence supporting a person’s citizenship status.

However, the ECI, in its argument, said that the principles articulated in that earlier judgment applied only to the period during which routine IR exercises were conducted and were not applicable after 2002. 

The Supreme Court accepted this argument without any logical  questioning about the need for SIR right now and the constitutionality of the clause which rejects previous voting as an evidence of citizenship? 

Endorsing exclusionary document regime and timeframe

The Supreme Court endorsed the ECI’s prescribed documentary requirements for proving citizenship, despite claims that lakhs of individuals were being excluded from electoral rolls because they could not produce the required documents.

It characterised the documentary framework as more “citizen-friendly” than previous mechanisms. However, this observation is self-contradictory since the top court itself has directed the ECI to include Aadhaar as an additional acceptable document to ease the documentation hassle for crores of individuals.

Instead of directing the EC to be more people friendly, however, it has sanitised the EC’s power to devise a document regime it deems fit. 

In paragraph 154, it declares:

"Equally, it must be emphasised that the purpose of the documentation requirement is not merely to establish identity in a generic sense, but to enable the Commission to verify eligibility in terms of residence and other statutory criteria. Not all documents serve this purpose with equal efficacy. The Commission is, therefore, entitled to differentiate between documents based on their evidentiary value in establishing the relevant statutory conditions."

Is Aadhaar approved or not?

On September 9, 2025 order of the SC to include the Aadhaar card as the 12 document for verification during SIR.

However, in the final judgement, the top court said that Aadhaar might not satisfy the goals of the SIR. Hence, even though it has directed to include Aadhaar, in paragraph 157, it hurriedly clarifies:

"It is, however, pertinent to note that while an Aadhaar Card may not constitute proof of citizenship or domicile, Section 23(4) of the RP Act expressly contemplates its use for the limited purpose of establishing the identity of an individual. In recognition of this statutory position, this Court, vide Order dated 08.09.2025, directed the Commission to treat the Aadhaar Card as an additional 12th document of identity for consideration in the process of inclusion or exclusion from the revised electoral roll in the State of Bihar. It was, however, made equally clear that such recognition does not elevate Aadhaar to conclusive proof, and that the authorities would remain empowered to verify its authenticity and genuineness, including by calling for such further material as may be necessary in a given case. [emphasis mine]"

This is an abdication of the court’s constitutional responsibility to meaningfully scrutinise the fairness and accessibility of documentary requirements.

The earlier Intensive Revision (IR) exercises conducted prior to 2003 accepted documents such as ration cards and driving licences. In contrast, under the SIR framework, as the judgement also concurs, these documents were are rejected on the grounds that they could be easily forged. Not only  this justification as weak and but also is a judicial acceptance harsh document regime imposed by the EC. 

Rejecting alternative mechanisms

Neither the ECI nor the Supreme Court has adequately explained why SIR was necessary. No substantial empirical evidence was presented to demonstrate that existing mechanisms, such as IRs, were insufficient for maintaining electoral rolls. Nor did the top court sufficiently examine why citizens should be compelled to produce documents they may not possess when prior revisions had proven their citizenship.

In response to arguments proposing continuation of the older IR process or other less exclusionary mechanisms, the Supreme Court stated that it lacked the institutional or technical competence to prescribe alternative administrative methods.

The apex court cited these arguments directly from its position on the constitutional validity of another anti-constitutional measure by the Modi government – demonetisation.  

So, is SIR a precursor to NRC?

The Supreme Court has directed the ECI to submit within four weeks a list of individuals suspected of lacking valid citizenship documentation.

The court has also directed that the Union government’s “competent authority” to make final determinations regarding such individuals’ citizenship status before any parliamentary, legislative assembly, or local body elections are conducted. 

The question is: doesn’t that make the SIR a precursor to NRC, a citizenship elimination device aimed at excluding the marginalised, and especially Muslims?

It also effectively prevents the State Election Commissions from independently preparing separate electoral rolls for local body elections in states governed by opposition parties.

Some organisations and political groups had believed that opposition-ruled states could potentially use State Election Commissions to prepare alternative voter lists that did not rely upon the SIR framework. The Supreme Court’s judgment, however, foreclosed such possibilities.

The SIR judgement demonstrates the Supreme Court’s alignment with the executive of late, rather than with constitutional protections or democratic safeguards it is meant to protect.

It constitutes another significant milestone in the institutional decline of the Indian judiciary during the Modi era. The opposition to the SIR process and the defence of constitutional principles now depend less upon judicial intervention and more upon public mobilisation, democratic organisation, and collective political action.

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