Back
slams Supreme Court and ECI for undermining adult franchise
delivered a scathing critique of the and the during the 17th K M Bashir Memorial Lecture, accusing both institutions of systematically eroding the constitutional guarantee of . Focusing on the ongoing of electoral rolls, Dave argued that the exercise—blessed by the Supreme Court—is effectively disenfranchising millions of citizens and undermining the very foundation of Indian democracy. His remarks come amid a deepening controversy over changes to voter enrolment forms, internal dissent within the ECI, and questions about the Supreme Court’s decision to uphold the SIR process long after elections were conducted on the basis of the revised rolls.
The Critique: A Systematic Decimation of the Constitution
Dave’s lecture, titled “Are We Failing the Constitution or has the Constitution Failed Us?”, painted a bleak picture of constitutional decay over the past seven decades. He asserted that the right to equality under has not been delivered, pointing to the widening gap between rich and poor, entrenched caste hierarchies, and persistent discrimination against women in employment and inheritance. The right to free speech and expression, he argued, is under constant assault, with stand-up comedians, cartoonists, and minority communities being targeted. “Even stand-up comedians are being targeted. Somebody writes a beautiful cartoon … whether it is against Mr. Modi or against Mamata or against Stalin or Mr. Thackeray; these cartoonists are sent to jail,” Dave said.
Most pointedly, Dave turned his attention to the electoral process. He recalled Dr. B. R. Ambedkar’s vision that political equality through was essential for democracy. “Ambedkar says, in politics we will have equality. You know, adult franchise. Of course, now, thanks to Election Commission and , that franchise is going away,” he declared. Dave revealed that even he and his wife had received notices questioning their inclusion in the electoral rolls.
The SIR Controversy and Supreme Court’s Role
The ECI announced the Special Intensive Revision of electoral rolls in Bihar on . Petitions challenging the exercise were filed almost immediately, seeking an interim stay. The Supreme Court, however, declined to halt the SIR, and the process was completed with the publication of the final roll on . Bihar’s Assembly elections were held on . The Supreme Court reserved judgment in and delivered its verdict only on —by which time SIR exercises had also been completed in several other states, including Puducherry, Kerala, Tamil Nadu, and West Bengal. The Court upheld the ECI’s power to conduct SIR, directing safeguards such as the acceptance of Aadhaar as an identity document.
Dave sharply criticized the Court’s timing and reasoning. He noted that the Supreme Court allowed the exercise to proceed and now it has emerged that Chief Election Commissioner Gyanesh Kumar was making decisions without the concurrence of the other two Election Commissioners. Dave referred to a report by that Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi formally objected on record at least 14 times over ten months to decisions and orders concerning the electoral rolls and SIR. The Commissioners claimed that statutory electoral authorities were being denied proper access to the roll-management system, and that changes to —the form used for new voter registration—were made without a corresponding amendment to the Registration of Electors Rules.
“When we talk of democracy, you’ve seen in last 48 hours how the two Election Commissioners brought out that the Chief Election Commissioner was doing something which was completely wrong and yet nothing was done. The Supreme Court has allowed the SIR exercise to take place and as a result, the elections in Bihar and West Bengal have taken place where we don’t know how the results have come about,” Dave said. He added that nearly 27 lakh people were kept out in West Bengal and an equal number in Bihar, while Delhi alone stands to lose 47 lakh and Maharashtra 2 crore voters. “So if you are going to keep 13.5 crore Indians as non-Indians, you can imagine what havoc it will play with democracy.”
Declaration: A New Hurdle for Voters?
The controversy over the SIR process has been further inflamed by changes to the attached to . Under the statutory framework, is used for inclusion of new voters, for objections, and for corrections. In , the ECI appended an containing a requiring applicants to declare their age, ordinary residence, and citizenship, with false statements attracting penal consequences under .
However, in , the ECI introduced a new version of the Declaration that goes further. It now requires applicants to provide details of their or their relative’s enrolment in the last SIR—including EPIC number, assembly constituency, part number, and serial number. Booth Level Officers are required to verify these details from last SIR rolls, and any discrepancy can lead to notice and penal action. Critics argue that this places an undue burden on ordinary voters who may not know technical terms like “Part Number.” The ECI has justified the new Declaration by claiming it was “upheld” by the Supreme Court in its judgment.
But a careful reading of the Supreme Court’s Bihar SIR judgment reveals a more nuanced position. The Court held that during SIR, the ECI is not strictly bound by alone and has to tailor the documentation framework. However, it emphasized that such authority is “not unbounded” and that any departure from the must have a “rational nexus” to the object sought to be achieved. The Court specifically approved the earlier Declaration () used in Bihar, not the new one introduced later. The ECI’s claim that the Supreme Court “upheld” the new Declaration is therefore open to serious question.
Legal Implications and the
The new Declaration raises several legal issues. First, whether requiring an applicant to link their enrolment to a relative’s prior SIR enrolment satisfies the . The Supreme Court had also held that the SIR process as a whole satisfied the , but the Commission may now have to justify why a voter’s failure to provide obscure technical details should result in denial of registration. Second, the timing of the introduction—after the Bihar SIR but before SIR in other states—raises concerns about arbitrary differentiation. The principle of under may be invoked if voters in 13 states/UTs were subjected to a more onerous form than those in Bihar.
Furthermore, the internal dissent within the ECI underscores a breakdown in collective decision-making. The reported objections of Commissioners Sandhu and Joshi to the centralization of database access and the unilateral amendment of statutory forms suggest that the Commission may have acted beyond its delegated powers. A has been filed before the Supreme Court seeking criminal prosecution of Chief Election Commissioner Gyanesh Kumar over alleged violations of statutory duties.
Dave also flagged the use of welfare schemes to sway voters, pointing to the direct transfer of ₹10,000 to every woman in Bihar before the election. “Will it not change, will it not sway her and her husband’s or her family’s decision to vote?” he asked, arguing that the electoral process has become completely skewed.
Impact on Legal Practice and the Justice System
For legal professionals, the SIR episode is a cautionary tale about the limits of judicial review in election matters. The Supreme Court’s decision to uphold the SIR after elections had already been conducted raises questions about the effectiveness of pre-election remedies. Lawyers may need to consider strategic filings that seek interim relief before the start of such exercises, rather than challenging them . The controversy over also highlights the tension between the ECI’s rule-making power and the statutory framework. Courts may be called upon to define more clearly the scope of the ECI’s “” and to ensure that any deviations from prescribed forms are both transparent and justified.
The larger implication concerns the health of Indian democracy. If the SIR process—blessed by the Supreme Court and implemented by an internally divided ECI—results in the exclusion of millions of voters, the constitutional promise of adult franchise will remain hollow. As Dave concluded, “We no longer own the state. They own us. we must have equal protection of law and equality before law. But here we are we are all unequal. The politicians have taken a place above us. They are a special class of citizens.”
Conclusion
The SIR controversy has exposed deep fissures in India’s electoral machinery. ’s critique, combined with the revelations of internal ECI dissent and the questionable legality of the new Declaration, demands urgent scrutiny by the legal community. The Supreme Court’s judgment, while upholding the SIR framework, did not address the subsequent changes to forms or the conduct of the Chief Election Commissioner. As more petitions reach the courts, the judiciary will have to grapple with whether the right to vote—a constitutional right under —can be burdened by technical requirements that have no clear statutory basis. For now, the message from Dave is clear: the Constitution is failing, and the courts and the election commission are complicit in that failure.
