Nudges from the Court, silence from the commission

The Hindu

3 days ago

The Supreme Court of India speaks in questions. Sometimes softly, sometimes sharply. In its hearings on the Special Intensive Revision (SIR) conducted by the Election Commission of India (ECI) in Bihar, the Court has asked what many in the country were thinking: Why was there a sudden need for fresh documentation? Why now? And what happens to the millions who cannot comply? Yet, the Court got a response from the ECI that did not address the underlying concern. The ECI insists that this is a technical revision. But the reality on the ground, and the implications of its policy, tell a very different story.
The SIR in Bihar requires every voter to submit new proof of citizenship — within one month — or face removal from the voter list. The stated intent is accuracy. But the effect is exclusion. This is not administrative housekeeping. It is an ideological shift in the treatment of citizens: from presumed inclusion to presumptive exclusion. This shift marks a deep departure from the constitutional vision of universal adult franchise.
Also Read | Mass inclusion, and not exclusion, should be the goal of the Bihar SIR, says Supreme Court
Turning away from constitutional promises
When India became a republic, it did something radical: it gave the vote to all adults, regardless of literacy, income, caste or gender. The Constituent Assembly debated this extensively. Many Members doubted whether the country was ready. But Dr. B.R. Ambedkar, among others, insisted that political equality must come first as a prelude to achieving social and economic equality.
That principle was translated into practice by the first Chief Election Commissioner (CEC), Sukumar Sen (March 21, 1950-December 18, 1958). Faced with 173 million potential voters, most of them illiterate, he innovated. He introduced voting symbols and designed processes that made participation easy, not difficult. India's first elections were not perfect, but they were inclusive. In contrast, the revision in Bihar by India's 26th CEC, Gyanesh Kumar, is the opposite. By demanding rare documents such as birth certificates and passports — held by only a small fraction of the population, the ECI is setting a bar that millions cannot meet. Aadhaar cards and ration cards, widely held by the poor, are not accepted. In Bihar, over 65 lakh people may now be at risk of disenfranchisement.
This is not an isolated event. We saw a similar exercise in Assam. The classification of lungi-wearing, Bengali-speaking Muslim inhabitants as 'D-voters' (doubtful voters) by the officers of the Election Commission, turned thousands into stateless persons. Many found themselves pleading before foreigners' tribunals, facing hostile bureaucracies and with no real opportunity to prove citizenship. With tribunals declaring them as foreigners and with no country ready to accept them, many have been just forcibly thrown away across India's borders, as unwanted human detritus.
Bihar is at risk of repeating that mistake. The State is poor, flood-prone, and infrastructurally weak. A rigid document deadline during the monsoon season is not just poor planning. It is a barrier, intentionally or otherwise, for the poor and the marginalised to access the ballot box . The burden of proof has now shifted. Citizens must prove that they belong, rather than the state proving they do not. This reversal may seem technical, but its moral and democratic cost is immense.
Also Read | In Bihar SIR challenge, Supreme Court refers to 1977 verdict on Election Commission's powers
Historical lessons and warnings
There are disturbing echoes here of the Jim Crow era in the United States (late 19th century to the mid-20th century), where African-American voters were disenfranchised through literacy tests, poll taxes and administrative obstructions. The veneer was legal; the purpose was political. It took federal intervention and landmark rulings such as Reynolds vs Sims (1964) and the Voting Rights Act 1965 to restore the right to vote as a true universal right.
India has similar legal protections. Supreme Court rulings such as Md. Rahim Ali vs State of Assam (2024) and Lal Babu Hussein vs Electoral Registration Officer (1995) have made it clear: disenfranchisement without due process is unconstitutional. Citizenship cannot be revoked or denied arbitrarily. Yet, here we are again — requiring the most vulnerable to navigate a process stacked against them.
The Court, during its hearing, asked pointed questions about the humanitarian consequences of the ECI's actions. But the ECI's response has been administrative, not empathetic. It continues to insist on timelines and technicalities, without addressing the social reality.
The ECI's constitutional mandate is not merely to maintain clean lists. It is to ensure free and fair elections. This means enabling the right to vote — not erecting barriers to it. In this, the ECI is failing. And the Court, while alert, must decide whether it will continue nudging it or start directing it. A soft caution is not enough when millions face disenfranchisement.
If this continues unchecked, we are entering dangerous territory. Voting could become a privilege of the documented middle class — urban, salaried, tech-savvy — while the poor, the displaced, and the undocumented are left behind. We risk creating two Indias: one with voting rights and one without. Political parties will then cater only to those who count — literally. Those without votes will be ignored in policymaking, welfare and justice. We are not just talking about voter lists here. We are talking about power — Who gets it. Who keeps it. And who is kept out of it.
Also Read | The need to safeguard the right to vote
A quiet Emergency
There is no need for tanks on the street to declare an emergency. A quiet one is already here. It arrives through missing names, unmet deadlines and unanswered questions. It arrives when state machinery treats citizenship as a favour, not a right. This moment calls for resistance — not just from the Court, but from citizens, civil society and Parliament. We must reclaim the principle that the right to vote belongs to the people, not the paperwork. Sadak, samaj and Supreme Court must loudly proclaim that Mother India belongs to all her children and that she does not discriminate on a religious or economic basis when her protection is sought.
As historian Ornit Shani reminds us in the book, How India Became Democratic, universal franchise was not an administrative accident, it was an imaginative leap. Bureaucrats and citizens together transformed a colonial mindset into a democratic one. That achievement must not be undone in the name of vigilance.
The ECI must remember that elections are not entrance examinations. They are acts of belonging. And in a democracy, you do not have to prove you belong. You vote because you are a citizen. And you are a citizen because the Constitution says so, not because you can find your birth certificate.
The vote is not a mere document. It is a declaration: that we are all equal. That one man has one vote and one vote has one value. That even if I have one vote out of 1.4 billion votes, it is an equal share in the republic, in which I and every Indian are equal participants. That right of ownership and participation is what is now at stake.
Sanjay Hegde is a Senior Advocate designated by the Supreme Court of India