Last week, the Supreme Court reserved judgment in the legal challenge to the ongoing Special Intensive Revision (‘SIR’) exercise. While the substantive issues of the case merit their own post, it is worth pausing and asking how the challenge, instituted in July 2025, took seven months to conclude and effectively sanctified the Bihar election results despite the voter rolls in the state being revised in a legally questionable manner. The reasons for delay differ from the Supreme Court’s now well recognised strategy of judicial evasion, where the Court simply refuses to hear constitutional challenges inconvenient to the government. The SIR case was regularly heard, often multiple times a week. Rather, as I argue in this post, the delay in the SIR challenge stems from the proceedings failing to differentiate and appropriately sequence the adjudication of the legality of the SIR and implementation concerns in Bihar, a failure with far reaching consequences.
Two types of Judicial Review
At the outset, it is worth differentiating between two types of judicial review that Indian courts engage in. The first type is judicial review simpliciter, where courts determine the lawfulness of legislative or executive action. For the purposes of this post, we can call this ‘legality’ review. The grounds of review (e.g., rights violation or ultra vires) determine when legality review can be invoked, the standards of review (e.g., proportionality or reasonableness) determine how the court should test the State action. Crucially, the consequences of legality review are black and white, either the action is upheld or invalidated, subject to specific directions.
This can be contrasted to ‘dialogic’ review where courts scrutinise government action with a view to facilitate open dialogue between the government, courts, and stakeholders. As noted on this blog, during dialogic review courts typically require the government to disclose its informational basis and methodological rationale for taking actions. This has the effect of subjecting the government decision-making to both public judgment (facilitating political accountability) and judicial scrutiny (by creating the factual and evidentiary basis to conduct legality review). The consequences of dialogic review are not invalidation, but increased transparency and accountability.
Challenges to the SIR
In July 2025, the Election Commission of India’s (‘ECI’) SIR notification was challenged. The petitions invoked several grounds of review, but the heart of the case centred around whether the ECI’s actions were ultra vires (beyond the power of) the Representation of the People Act 1950 (‘RPA’). Section 21(3) grants the ECI a power to conduct a “special revision” of voter rolls for “any constituency or any part of a constituency” in “such manner as it thinks fit” for “reasons to be recorded.” Against this language, the ECI’s exercise raised several questions. First, does the language in s 21(3) allow for a special revision for all constituencies in a state, and indeed, the country? Second, did the ECI record its reasons, and are they adequate? (Pertinent because the ECI refuses to disclose any documentation concerning the decision to undertake the SIR).
Third, and most importantly, do the words in “such manner as it thinks fit” grant the ECI the power to regulate its own procedure when carrying out a special revision? The ECI argued that when conducting a “special revision” under s 21(3) it is not bound by either the RPA or the Registration of Electors Rules 1960 (‘Registration Rules’) and the Commission is free to dictate its own procedure based on its overarching powers for the superintendence of elections found in Art 324 of the Constitution. The ECI used this argument to make several departures from the RPA and Registration Rules, including choosing to reject Aadhaar cards and making a distinction between voters added to the rolls prior to the last intensive revision (2003 in Bihar) and voters added to the rolls subsequently, placing additional documentary burdens on the latter group.
Thus, the writ petitions demanded the Court to conduct legality review and invalidate the SIR notification. However, the petitions also raised several practical concerns regarding the implementation of the SIR in Bihar, referring to the size of the administrative exercise to be conducted prior to the Bihar elections schedule for November 2025.
Hearings before the Supreme Court
In its first order on 10 July 2025, the Court acknowledged that the petitions raised serious questions concerning the power of the ECI to conduct the SIR. At this hearing, the Petitioners did not press for an injunction (stay) on the SIR because the next date of hearing, 28 July, was prior to the release of the draft electoral rolls on 1 August 2025. However, on 28 July, the Court expressly declined to injunct the SIR exercise, instead requesting counsel for a timeline for oral arguments to determine the legality of the SIR. At this stage, the publication of the final electoral roll for Bihar was still two months away (30 September), and the Bihar elections a full three months away.
However, after the publication of the draft rolls in Bihar on 1 August and the revelation that 6.5 million individuals had been excluded from the rolls, the proceedings at the Supreme Court centred around remedying this situation. The Court passed a clutch of orders scrutinising and supervising the conduct of the SIR exercise including. On 14 August, the Court directed the ECI to publish the list of deleted voters in a searchable format. On 22 August, the Court reiterated that the ECI should accept forms online. On 8 September, the Court directed that Aadhaar cards be accepted for inclusion in voter rolls.
On 15 September, with the SIR process now afoot in other states, the Petitioners reiterated the need for the Court to hear and decide the legality of the SIR. In response, the Court stated that the Court’s directions concerning the conduct of the SIR would apply to other states. On 9 October, the Court directed that the Bihar legal services committee be mobilised to assist individuals excluded from the rolls. On 11 November, the last date for voting in Bihar, with the horse having well and truly bolted, Justice Bagchi noted that the case would proceed on two tracks, one concerning the legality of the SIR, and the other concerning the implementation challenges.
Evaluating the Court’s Role
A preliminary point to observe is that neither on 10 or 28 July, prior to the publication of the draft rolls in Bihar, did the Court hear structured arguments for injuncting the SIR, nor did its orders reflect any reasoning as to why an injunction should not be granted. As noted on this blog, there are well established legal tests for when an injunction should be granted, and despite these tests themselves granting substantial discretion to judges, the Court simply refuses to engage with these legal standards. The result is that we do not know the reasons why the recent UGC Guidelines warrant a stay but the SIR does not.
Nonetheless, on 28 July 2025, the Court still had two months runway to examine the case before the publication of the final electoral roll for Bihar on 30 September. It used this time almost exclusively to engage in dialogic review, supervising the implementation of the SIR in Bihar. Two justifications could be put forward in defence of the Court’s actions. First, the implementation of the SIR in Bihar independently warranted dialogic judicial review. After all, the Court’s intervention led to much needed transparency, including the ECI publishing the list of excluded voters. Second, the Court was balancing the immediate needs for dialogic review in Bihar with the larger question of the SIR’s legality. After all, the Court did eventually hear arguments on the legality of the SIR.
Both these arguments are flawed. I would submit that in cases like the SIR, where the demands of both legality and dialogic review are present, determinations of legality must come first. Engaging in dialogic review is wholly inappropriate where the power of the State (the ECI in this case) to undertake an action is itself challenged. Transparency and accountability are fundamentally secondary to the rule of law question raised by an allegation that the State is acting without legal authorisation. In other words, questions of whether the ECI is acting transparently and non-arbitrarily are only relevant if the ECI is acting within its constitutional and statutory powers. If it is not, the consequence is invalidation and questions of transparency and accountability are moot. On this principled basis alone, the SIR’s legality alone should have been decided before any implementation concerns. But even purely on practical terms, deciding legality first made more sense. Assuming the SIR exercise was invalid, no questions of implementation need be decided. If the SIR was partially invalidated, this would still narrow the Court’s subsequent dialogic intervention on implementation. If the SIR was valid, the Court could engage in dialogic review on surer footing.
Here one might argue that if the Court first adjudicated the question of legality, it might have been too late to intervene in Bihar. There are several reasons why this is too charitable to the Court. First, the facts necessary for the Court to decide the legality of the SIR were available to it. Unlike in cases concerning the COVID-19 pandemic or illegal demolitions, where executive decision-making is not immediately disclosed, and the court calls on the government to place its decision-making before the court, the SIR notification was published and scrutinisable on its own terms. Second, the Court had two clear months between 28 July and 30 September (when the final roll was published) during which it heard the case thirteen times. This was surely ample time to decide legality and then address any concerning regarding implementation. Third, if the Court was of the view that this was not enough time, the appropriate response would have been an injunction. The point of a stay order is precisely to create time for the court to adjudicate legal rights and ensure they are not overrun by developments on the ground. It is disingenuous to deny the party approaching the court an injunction and subsequently cite a paucity of time as the reason for not deciding the party’s rights before they are rendered infructuous. Fourth, the Court always had the option to bifurcate the proceedings and have issues of implementation and legality heard parallelly by two separate benches.
Conclusion: Impact on the SIR Challenge and Beyond
The sequencing of judicial review may appear at first glance to be lawyerly nitpicking. However, the Court’s approach has far-reaching consequences. First, as the Bihar elections are over, any questions regarding the legality of the SIR vis-à-vis voters in Bihar have been rendered infructuous by the Court’s approach. Second, using the lens of legal realism, we can see how the Court’s approach has created a significant institutional incentive to not invalidate the SIR. This is because, if the Court were to strike down the SIR, it cannot reverse Bihar elections, but it would fundamentally undermine their legitimacy in the eyes of the people. This would harm both the institutional legitimacy of the Court and Indian democracy more broadly. Without predicting how the Court may rule, we can simply note that the ordering of judicial review has adversely affected the petitioners.
Given the propensity of Indian courts to throw themselves headfirst into complex social problems where the demands of both legality and dialogic review exist simultaneously, the SIR challenge should prompt greater focus on how courts can address the demands of both in a principled and practical manner. Some of this thinking must also come from the lawyers strategizing such challenges. The ECI’s strategy during the SIR challenge was clearly to extend proceedings and the Court was complicit in this endeavour but thought should be put into how future challenges can force the Court’s hand. For example, using separate petitions to seek invalidation and monitoring could allow petitioners to selectively withdraw petitions seeking dialogic review if the court is getting side-tracked (with liberty to file them again after a decision on legality). The Bar should also not allow its propensity for lengthy oral arguments to be used as an excuse by the courts to conclude that there is insufficient time to hear challenges in a time-bound manner. This may involve certain hard-to-stomach sacrifices, but as the SIR challenge demonstrates, you cannot have your cake and eat it too.
Constitutional Law and Philosophy 