By Arun Srivastava
The joint memorandum to the Chief Justice of India, Justice Surya Kant, by the twenty-three opposition parties is virtually of the nature of mercy entreaty which “appeals to the conscience of the judiciary. The judiciary has to see what is happening in the country today. When everything else fails, who do we turn to?” It is indeed a sad commentary on the functioning of the Indian judicial system when the parties or the individual have to appeal to the conscience of judiciary for seeking justice, which of otherwise has been their fundamental rights under the provisions of the Indian Constitution.
It is coincidence that the opposition appealed to the CJI on the day he was delivering his address on “Safeguarding the Rule of Law” at the International Institute for Democracy and Electoral Assistance (IDEA) in Stockholm, Sweden where he emphasized that the rule of law disciplines arbitrary power and that an independent judiciary is vital for protecting individual liberties. While the CJI defined judicial review as a “constitutional duty” to prevent executive overreach, critics argue the Supreme Court has often shown excessive deference to the ruling government, allowing certain sweeping policies to escape strict judicial scrutiny. CJI in his Swedish address that courts shouldn’t function as mere “spectators” to constitutional violations. Yet, civil society groups, citizens, and opposition parties have expressed frustration over the judiciary’s handling of crucial election disputes, such as delayed hearings on Electronic Voting Machine (EVM) challenges and voter deletion
His words sounded sanctimonious. In his keynote address and during the panel discussion, Justice Surya Kant highlighted the enduring strength of the Constitution of India, the independence of the judiciary, the protection of fundamental rights and the importance of ensuring access to justice in a vibrant democracy. But viewed in the backdrop of his observations in the SIR case, there appeared to some kind of variance. It lacked some kind of deep commitment to the peoples’ cause. While the CJI’s international remarks were widely praised for affirming the Indian judiciary as the ultimate guardian of constitutional supremacy, their alignment with the court’s domestic actions and bench compositions remains a subject of ongoing debate among legal scholars.
Though CJI observed that “COURTS CANNOT be mere spectators in the constitutional order” and “must remain vigilant guardians of constitutional supremacy, ensuring that no exercise of public power escapes the sustained discipline of law” his remark nevertheless went against the observation of his brother justice sharing the bench that those who could vote this time (in 2026 Bengal assembly election) should vote next time. It is beyond comprehension how could judiciary deny the constitutional right of an individual to exercise his right to vote for the fault of the Election Commission. The judiciary instead should have pulled up the Chief Election Commissioner Gyanesh Kumar for his failure to publish an error free voters’ list well before the election date.
If the 27 lakh voters’, denied of their right to vote, under the phrase logical discrepancy, framed by CEC Gyanesh Kumar, would have been allowed to vote, the electoral results of Bengal might have been entirely different. It obviously implied that the judicial system became the victim of the wicked designs of CEC to help his political master to win the election. Speaking on the topic ‘Safeguarding the Rule of Law — Experiences from India and Sweden’, the CJI said the “rule of law…disciplines the exercise of power” and “ensures that public authority acts through known, stable and general rules; that citizens are treated as equals before the law; and that no person is left vulnerable to the whims of arbitrary government”.
Actually just contrary to his remarks developments had happened in Bengal during the recent assembly elections. The public authority did not follow the rule of law as underlined by Justice Kant in his Sweden speech. He had also underlined, “the endurance of a constitutional democracy rests upon the fidelity of the Executive and the Legislature to constitutional norms” and “the greatest safeguard to ensuring that these two pillars fulfil their duty lies in an independent Judiciary”. Nonetheless the disconnect between the judiciary’s theoretical commitments and actual on-ground enforcement, particularly regarding election-related challenges and the preservation of political balance has become common.
It is really astonishing that how could Supreme Court not comprehend the designs of the CEC, while the political parties, social activists and academics had come to realise the “biased” conduct by the Election Commission. In fact the latest memorandum to CJI refers to the role of the Election Commission of India and cites examples of how the SIR process has affected people in different states. The Congress and other Opposition parties have been questioning the EC over the Special Intensive Revision process. On August 12, 2025, during a Supreme Court hearing regarding the Election Commission of India’s (ECI) Special Intensive Revision of electoral rolls in Bihar, activist Yogendra Yadav (who was appearing in person) and Senior Advocate Kapil Sibal brought multiple individuals who had been officially marked as “dead” to physically appear in the courtroom. The petitioners highlighted these individuals to demonstrate the flaws and hasty nature of the ECI’s roll “purification” exercise.
Gyanesh Kumar facing Impeachment motion by 193 Members from across both Houses of Parliament indulged in ‘revenge strike’ against the political party from Bengal that initiated the motion. This raises a deeply distressing question as to whether moral authority in India is dead and buried! The CJI shed light on “how, when confronted with moments of grave crisis and profound human suffering, the constitutional courts in India have fashioned pioneering doctrines to restrain public power and broaden access to justice”. But it does not appear to be happening on the ground level. He also said, “This journey of undertaking judicial review is often misconstrued as a power vested in the Judiciary, but in my opinion, it is nothing but a duty and responsibility entrusted by the Constitution. What follows is that the rule of law in India has remained not an abstract constitutional promise but a lived and undeniable reality for every citizen.” He said; “Justice can endure only when the one who judges stands insulated from every form of pressure and influence, and remains faithful to law and conscience alone.”
Chief Justice of India (CJI) Surya Kant and Justice Joymalya Bagchi ruled that the SIR exercise falls within the Election Commission’s mandate under Article 324 of the Constitution and Section 21(3) of the Representation of the People Act, 1950. The Court held that the process does not act as a backdoor citizenship test or violate constitutional provisions, but rather functions to ensure the accuracy of electoral rolls. However, the Court’s stance has faced strong pushback from the political opposition and civil rights groups. In fact the latest memorandum from 23 political parties and one independent MP, points to the misuse of the SIR, alleging it is being misused by a biased Election Commission to inappropriately delete millions of legitimate voters.
The Supreme Court upheld the ECI’s SIR exercise, ruling that the data did not reveal systemic disenfranchisement. Following the ruling, 23 opposition parties and Independent MP Kapil Sibal wrote a joint letter to the CJI expressing continued concerns over the exercise and alleged manipulation. The content of the letter to Chief Justice of India revolved around the Special Intensive Revision (SIR) of electoral rolls across the country, and its alleged misuse by the Election Commission of India to favour the ruling party,
There is no ambiguity that SIR initiated by the ECI is a “rightist capitalist move”. While the ECI frames the SIR as a neutral, bureaucratic procedure to eliminate duplicate voters and ensure accurate electoral rolls, critics, civil rights organizations, and opposition parties argue the move functions to the detriment of marginalized and vulnerable groups. The SIR can be analysed from multiple ideological standpoints. It is mandatory under SIR for the common people to prove citizenship and residency, disproportionately affecting vulnerable, rural, and migrant populations who often lack extensive historical records.
Rolling out a process that effectively screens voters for “citizenship” aligns with right-wing, nationalist agendas aimed at strict boundary control rather than expanding democratic participation. Left-leaning critics view the rigorous verification processes as a form of “technological disenfranchisement” that inherently favours the privileged who have easy access to documentation. Civil rights activists are correct in arguing that turning the fundamental right to vote into an administrative privilege requiring complex paperwork undermines universal adult franchise.
It is worth mentioning that even the PUCL condemned the 27 May, 2026 decision of the Supreme Court in ‘Association of Democratic Rights v. ECI as a singular blow to the principle of political equality in India. In one of its most consequential decisions, the Court legitimized the mass disenfranchisement exercise conducted by the Election Commission of India which disproportionately affected minorities, migrants, the poor and women and was contrary to existing law and procedure. This mass disenfranchisement exercise went under the nomenclature of ‘Special Intensive Review’ (SIR).
While the Court goes through legal pyrotechnics to uphold the SIR, none of its legal justifications can hide the fact that at the end of the SIR exercise, the electorate of Bihar has effectively shrunk by more than 68 lakh voters. 65 lakh voters were deleted when the draft rolls were published. When the final rolls were published, another 3.66 lakh voters were deleted and 21.53 lakh voters were added. However, due to lack of transparency in the data published by ECI, it is impossible to know if the 21.53 lakh additions were of the same voters whose names were deleted. It has been widely reported that most of the deletions that took place were of voters from low-income, migrant working population as well as women. (IPA Service)
