From Evasion to Implementation: The Supreme Court of India and the ‘Special Intensive Revision’

Sourya Bandyopadhyay

Dr Sourya Bandyopadhyay is an Advocate, Calcutta High Court, India. He has earned his PhD in Constitutional Law from IIT Kharagpur. He can be reached at souryab1992@gmail.com

Introduction

Focusing on the Indian Supreme Court’s (SCI) engagement with the ‘Special Intensive Revision’ process (‘SIR’) in the State of West Bengal, this article critically engages with the judicial performance of the Court in this ongoing electoral roll revision. On 20th February 2026, citing the extraordinary trust deficit between the Election Commission of India and the elected government of West Bengal, the apex court directed that disputes regarding exclusion from the revised draft electoral rolls resulting from ‘logical discrepancies’ should be adjudicated by subordinate judicial officers. Separately, the SCI also directed the formation of Appellate Tribunals to hear appeals from such adjudications. As controversies surrounding the SIR keep piling up, including the exclusion of million voters, the politics of the judicial involvement in the matter is difficult to ignore at this stage.

Judicial Evasion and the Special Intensive Revision

Judicial evasion is now a well-noted strategic approach adopted by the Indian judiciary, whereby the Court refuses to hear a petition after admitting it, and maintains strategic silence on critical constitutional questions to avoid political repercussions. Judicial avoidance of decision-making in matters of time-sensitive constitutional salience benefits the Governmental stance over the opposition’s; if at all the Court chooses to return to the question later, things would have irreparably been reversed by then. Judicial evasion has been particularly evident in cases such as the constitutional challenge to Aadhaar (India’s biometric unique identity scheme), the demonetization petitions, and even the constitutional challenge to the repeal of the special status of the State of Jammu and Kashmir. The same dynamics are clearly visible in the SIR context. The State of Bihar, for example, which was the first laboratory of the disenfranchising SIR process, has already undergone elections. A new government has been formed and is up and running, even though the Supreme Court is yet to decide on the petitions challenging the constitutionality of the SIR. However, the matter was regularly heard by the SCI - contrary to earlier experiences of judicial evasion, as Vasudev Devadasan notes. The ultimate experience remained the same, whereby the process was allowed to continue.

The legal challenges to the SIR, even in West Bengal, involve two parallel axes. The constitutionality axis relates to the legality of the scheme as a whole, and the implementation axis concerns the different methods of its execution. The journey of SIR through the Supreme Court has been marked by an overwhelming judicial silence on the constitutionality axis, while the Court has been engaged in supervising and fine-tuning various implementation challenges associated with SIR. These include attempting to ensure transparency by mandating publication of the list of names under the logical discrepancy category, and allowing them to file their objections through authorised representatives, ensuring a smooth provision of sufficient number of officials by the State Government to the Election Commission, clarifications as to the documents required, and the like. The order of 20th February marks a new chapter in the journey, as the Court has gone beyond a supervisory role and assumed an active part.

This sudden turn by the Court to participate in implementing the SIR process is curious, because at least two primary constitutional questions bearing strongly on the constitutionality of SIR remain undecided. Contemporary Indian polity faces the charges of autocratic legalism, to which the Election Commission has arguably fallen victim. An Act of 2023 has contradicted the central tenets of the SCI’s Anoop Baranwal decision (2023) regarding the Commission’s neutrality. The appointment process for the topmost electoral officials is now dependent on the will of the parliamentary majority. First, the constitutionality of the 2023 Act remains undecided by the SCI. The SIR is ongoing, with its custodian having been constituted under a constitutionally suspect statute. Secondly, the SIR itself has generated multiple lines of constitutional challenge, including the limits of the Election Commission’s power and scope to conduct it. The Court, however, has even stated that it does not intend to allow any impediment to the process. This judicial takeover of the SIR process, thus, by evading the constitutional questions, appears to formally legitimise perhaps the most controversial exercise of the Election Commission to date.

The Absence of Law in the Supreme Court’s ‘Complete Justice’

The non-consideration of primary constitutional questions in SIR makes it unsurprising that the judicial takeover is marked by a minimal engagement with the law. Except invoking the all-encompassing power to do complete justice under Article 142, the Court offered very few legal justifications for its direct interventions. The Representation of the People Act, 1950, the governing legislation, provides for appeals after the deletion of a name from the electoral rolls first to the District Magistrate, and then to the Chief Election Commissioner. The replacement of the statutory route with judicially created tribunals is difficult to justify constitutionally and contradicts the Court’s earlier assertion. The only possible justification may be the practical consideration of the hardship people had faced, given that the SIR was conducted at a breakneck speed and the existing mechanisms would have been simply ineffective. In that case, the most obvious choice would have been to decide the constitutional questions first. Instead, the Supreme Court now puts its institutional weight behind the controversial exercise by actively participating in it.

The post-emergency Indian judiciary had sought to posit itself as the vanguard of the elusive quest for a social revolution, constitutionally earmarked as the task of the elected organs. In the institutional tussle for power with the executive/ legislature, the Court had firmly established itself as a strategic actor. The much-fabled Indian judicial activism, including public interest litigation, has, by the Court’s own admission, been transformed into a forum of governance, where the outcomes dictate the procedure. A significant result of this is the judiciary coming to share governmental anxieties, as it chooses to supplement executive/legislative failures. Instead of a rights-protection focus, the approach shifts to one of balancing competing assertions, akin to that of a negotiator. The question of assigning constitutional responsibilities and generating principles – thereby holding the executive/legislature accountable - is pushed to the sidelines. This approach can transform even large-scale human rights violations, such as the migrant workers’ plight during Covid-19, into an ‘amorphous human tragedy’. The SIR process also shows that, by choosing not to address the constitutionality questions and taking over the implementation aspects, the Court once again fails to locate the primary responsibility of (mis/mal)-performing a large-scale exercise like SIR. It fails to interrogate, for example, the Election Commission’s failures in maintaining an electoral list that was apparently so faulty that millions of names had to be excluded, even though that list has been used in multiple elections. It fails to rein in the spread of suspicion towards the electorate as a whole to mask executive failure, where, by reversing the burden of proof, holders of identity cards are asked to confirm their authenticity rather than the issuing authorities.

‘As Agreed by Both Sides’: The Judicial Assumption of Political Responsibilities

Strikingly, the otherwise warring parties had agreed to the judicial takeover, as the Court noted in para 4 of its 20th February order. What propels such agreement? Those politically opposed to the SIR may have seen this as a practical compromise, given that the chances of the constitutional challenge surviving after all this grow thinner by the day. In the circumstances, at least, the presumptive impartiality in adjudicating documentary discrepancies seems to be an acceptable middle path. On the other hand, the SIR process appears to become an exercise in exclusion rather than inclusion. The spread of fear has allegedly resulted in panic deaths, including extreme stress suffered and suicides committed by grassroots-level electoral officials. Clearly, the exercise, despite its potential benefits, also carries a potentially high political cost for the central political power. The agreement, as reflected in the order towards judicial takeover, may signify a secret sigh of relief from the stakeholders. Judicial intervention and engagement will now become a steady source of delegating political responsibility.

Conclusion:

Indian democracy at present is witnessing constitutionally surreal times. The Election Commission, with its stated motto of ‘Greater Participation for a Stronger Democracy’, launched an exercise aimed at excluding hitherto existing voters. In such a context, the sudden turn of the Indian Supreme Court from constitutional evasion to active participation serves as a cautionary tale about the politics of adjudication juxtaposed with trends of democratic decay. The SCI’s orders on the SIR in West Bengal reveal the disturbing trends of the structural realignment of judicial power in India, which comes to fulfil controversial executive dicta rather than scrutinise decision-making. Invisibilizing the foundational constitutional questions, the SCI invites political responsibility.

Dr Sourya Bandyopadhyay is an Advocate, Calcutta High Court, India. He has earned his PhD in Constitutional Law from IIT Kharagpur. He can be reached at souryab1992@gmail.com

Suggested Citation: Sourya Bandyopadhyay, ‘From Evasion to Implementation: The Supreme Court of India and the ‘Special Intensive Revision’’ IACL-AIDC Blog (12 May 2026) From Evasion to Implementation: The Supreme Court of India and the ‘Special Intensive Revision’ — IACL-IADC Blog