Bihar SIR Judgement: Three doctrinal gaps

A constitutional holding touching the adult franchise rests upon visible foundations such as precedents and provisions. The Supreme Court’s judgement on the Election Commission’s Special Intensive Revision (SIR) of electoral rolls in Bihar exhibits three doctrinal gaps in those foundations.

Chief Justice Surya Kant authored the opinion for himself and Justice Joymalya Bagchi. 

Half-precedent

Paragraph 90 of the judgement justifies its proportionality holding by relying on In Re Section 6A of the Citizenship Act 1955 (2024), also authored by CJI Surya Kant. While the judgement safely establishes that the right to vote is subject to limitations, it ignores a proposition that was held in the 2024 ruling. 

The petitioners in the Section 6A challenge had argued that the inclusion of Bangladeshi migrants on the electoral rolls had reduced the political rights of native Assamese voters. CJI Surya Kant expressly rejected this argument. The judgement held that the right to vote cannot be restricted based on when citizenship was acquired. Allowing the contrary plea would “militate against the spirit of Article 326.”

This is the second-half of the 2024 holding that the SIR judgement does not address. The SIR requires voters enrolled after 2003 to re-establish entitlement by reference to ancestral entry on the 2003 roll. This restricts the franchise precisely by reference to when citizenship was acquired.

A judge revisiting his own reasoning is not an error, citing only the supporting half is a different proposition.

No inquiry into “material on record”

The Bench reads Section 21(3) of the Representation of the People Act, 1950 as the source of the power validating the “special revision”. First, it holds that the ECI may revise “any constituency.” Secondly, the ECI may revise all constituencies simultaneously through a procedure of its own design

Section 21(3) permits a special revision for “any constitutency…in such a manner as it thinks fit”. The judgement reads “any constituency” as “all”, rejecting the petitioner’s plea to restrict it to some constituencies. This reading is textually defensible. However, the analysis does not engage with the broader statutory architecture of Section 21(3).

Sections 21(1) and 21(2) bind the Commission to a “prescribed manner” for ordinary roll revisions. Section 21(3) deliberately omits that formula, signalling that special revisions are exceptional in nature and require a weighty record of reasons.

The ECI’s 24 June 2025 notification does not supply that record and offers generic boilerplate reasons—rapid urbanisation, frequent migration, newly eligible youth, underreporting of deaths and “the inclusion of names of foreign illegal immigrants.” None of these is a finding particular to the 2003 roll. The Notification does not explain why the rolls prepared under the annual summary revisions—described as 99 percent accurate—are inadequate. 

Instead of seeking empirical material, the Bench accepts the ECI’s bare assertion of “cumulative inaccuracies over an extended period.” 

A narrowed precedent

In paragraph 113 to 115, the Court distinguishes Lal Babu Hussein v Electoral Registration Officer (1995) from the present challenge by holding that it is concerned with “adjudicatory proceedings” against individual electors. The Court claims that the judgement does not extend “to a systemic, inquisitorial exercise undertaken in furtherance of the Commission’s constitutional mandate.”

The 1995 judgement says otherwise. Paragraph 13 held that when voters are already on the rolls, the strict procedure for removal must be followed, whether their names are targeted through a “special revision, intensive or otherwise.”

The phrase “whether intensive or otherwise” is the 1995 Bench’s express anticipation of the very category the 2026 Bench now carves out. A precedent is narrowed by distinguishing what it actually held, not by recasting what it concerned. The 1995 judgement considered a special revision in Delhi following ECI directives on citizenship verification. That is, in substance, the same exercise the Bench has upheld in 2026.

The Bench notes that the procedural safeguards under Rule 21A of the Registration of Electors Rules, 1960 stand “preserved in substance.” The Rule dictates that any deletion should be preceded with “a reasonable opportunity to show cause why the action proposed should not be taken”. Whether the safeguards are so preserved turns on whether the underlying burden was reversed, which is the question Lal Babu Hussein answered and the present judgement does not. 

The Bench anticipates the objection. At paragraph 112, it holds the presumption of eligibility to be included in the electoral rolls is “an evidentiary presumption” under Section 114 of the Indian Evidence Act, 1872. This is compounded with paragraph 118 which holds that the presumption is not a “perpetual guarantee against scrutiny” as electoral rolls are “evolving instruments.”

Both propositions are correct. Neither answers the difficulty. The 1995 Bench was equally aware that the presumption was evidentiary, and cited Section 114 expressly. It nonetheless held that the burden of displacement lay on the authority.

Between disappointment and doctrine

For the petitioners, the result reads as failure. The Court instead validated the exercise on every count framed. On a narrower register, the judgement contributes. It clarifies the Election Commission’s power under Section 21(3) read with Article 324. It draws an intelligent line on the Commission’s citizenship enquiry—electoral and not adjudicatory. It preserves the competent authority’s exclusive jurisdiction under the Citizenship Act, 1955. The architecture of the Commission’s institutional powers is more carefully built than the precedent reasoning that supports it. That does not dissolve the three gaps.