New Delhi: The Election Commission (EC) of India’s Special Intensive Revision (SIR) of electoral rolls has triggered an unusual public divide within the legal fraternity, with some former judges questioning the poll body’s functioning and others rallying behind it.
The dispute revolves around concerns over voter exclusion, the commission’s decision-making process and the limits on public criticism of constitutional institutions.
The controversy intensified after an investigation by The Indian Express found differences among the three election commissioners over decisions related to the SIR exercise, including changes to Form 6, which is used by new voters to enrol themselves.
The report prompted questions about whether the crucial decisions had the backing of the full three-member commission or were taken unilaterally by Chief Election Commissioner Gyanesh Kumar.
The dispute has since moved beyond the implementation of electoral roll revision. It has brought former judges into a public debate over the right to vote, the independence of the poll panel and the responsibility of constitutional authorities to maintain public confidence in elections.
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‘Burden cannot be placed on voters’
Former Supreme Court judge Venkate Gopala Gowda has called for the top court to reconsider its May 2026 judgment upholding the EC’s authority to conduct the SIR. In a media interaction in Bengaluru on 8 October, he alleged the commission had committed a “fraud” on the court by misrepresenting material facts about the decision-making process within the institution.
Justice Gowda (retired) argued that the court should examine the commission’s records to determine whether the decisions related to the SIR exercise had the approval of the full panel. He pointed to reports that the two election commissioners—Sukhbir Singh Sandhu and Vivek Joshi—had objected to certain decisions, and contended that these objections had not been brought to the Supreme Court’s notice.
He also questioned the commission’s claim that the Supreme Court had approved changes to Form 6, arguing that the court had upheld the authority to conduct the revision, not necessarily every detail of its implementation. The distinction matters because the legality of undertaking a revision and the legality of the procedures adopted during it are separate questions.
Former Supreme Court judge Rohinton Fali Nariman has raised concerns about the consequences of the revision for voters, and the independence of the commission.
Speaking at an event in Rajkot on 27 September, Justice Nariman (retired) referred to reports of large-scale voter exclusion in West Bengal. He highlighted figures suggesting that around 90 lakh voters had been excluded, while only a fraction could appeal against their exclusion. He said a substantial proportion of those who appealed were successful.
Justice Nariman (retired) questioned how a process resulting in such largescale exclusions could be reconciled with the right to vote, which he said is at the heart of democracy. He also flagged the 2023 law governing the appointment of the CEC and other election commissioners, arguing that executive control over the selection process raised concerns about the institution’s independence.
His criticism thus extended beyond the SIR. If the body entrusted with conducting elections is perceived as vulnerable to executive influence, questions arise about whether its decisions can command public confidence. Justice Nariman (retired) urged the Supreme Court to intervene in the pending challenge to the appointments law.
The burden of establishing eligibility
Justice Sanjib Banerjee (retired), who has served as the chief justice of the Meghalaya and the Madras high courts, asked a more fundamental question: who should bear the burden of establishing a citizen’s eligibility to vote?
He argued the EC got this principle wrong by placing the burden on voters to establish their right to remain on electoral rolls. He referred to Articles 325 and 326 of the Constitution, which provide for a common electoral roll and adult suffrage, subject to constitutionally and legally recognised disqualifications.
He also distinguished between the Supreme Court upholding the EC’s authority to conduct the SIR, and approving the specific forms and procedures used in the exercise. According to Justice Banerjee (retired) , the court had not endorsed every operational detail, including the disputed changes to Form 6.
Citing his own constituency of Bhabanipur in West Bengal, where he said around 40,000 to 44,000 voters had been excluded while the victory margin was about 15,000 in the 2026 assembly election, Justice Banerjee (retired) argued that the scale of the omissions raised serious questions.
He acknowledged that some excluded names could indeed be in the deceased or non-existent category, but maintained that the numbers warranted scrutiny.
42 ex-judges defend EC
The criticism has been met with a collective defence of the EC by 42 retired judges, who on 7 October issued an open letter titled “In Defence of Our Constitutional Institutions”.
Among the 42 judges are former SC judges Hemant Gupta and Pankaj Mittal, as well as B.C. Patel (former chief justices of the Jammu & Kashmir and Delhi high courts), Subhro Kamal Mukherjee (Karnataka High Court), and Permod Kohli (Sikkim High Court). Former Gujarat High Court Chief Justice and Lokayukta S.M. Soni is another signatory.
The signatories argued that the commission, the judiciary and other constitutional bodies were facing a sustained campaign aimed at undermining public confidence in them. They described allegations against the poll panel as a campaign driven by vested political interests and warned against using unsubstantiated claims to delegitimise elections.
The letter specifically defended the legal basis for the SIR, referring to Section 21(3) of the Representation of the People Act, 1950, which empowers the commission to undertake special revisions of electoral rolls.
The signatories maintained that such revisions were not unprecedented and that the exercise was intended to remove names of deceased, duplicate or otherwise ineligible voters while ensuring that eligible citizens were included.
Their argument rests on a legitimate institutional concern: allegations of electoral manipulation, particularly when made without adequate evidence, can erode trust in the machinery through which citizens choose their governments. The letter urged political parties to contest elections rather than undermine their legitimacy, and called on the media to verify claims before amplifying them.
Justice Bhuyan vs ex-CJI B.R. Gavai
The divide has also extended to the question of whether sitting judges should publicly comment on issues that are pending before the courts.
Supreme Court Justice Ujjal Bhuyan, speaking at an event at NALSAR University of Law in Hyderabad on 4 October, spoke against the prospect of large-scale disenfranchisement. He didn’t mention the SIR, but said any process that disenfranchised millions of citizens was “intrinsically arbitrary” and a “negation” of the constitutional order.
Justice Bhuyan also invoked Articles 14 and 326 of the Constitution, concerning equality before the law and adult suffrage. He rejected attempts to justify mass exclusion by pointing to alleged irregularities elsewhere, saying that no amount of “whataboutery” could justify disenfranchisement.
His remarks drew a sharp response from former Chief Justice of India B.R. Gavai. The former CJI argued that judicial discipline and propriety did not permit a sitting or retired judge to comment publicly on an issue pending adjudication before the Supreme Court or another court.
Retired Delhi High Court judges S.N. Dhingra and R.S. Sodhi also questioned Justice Bhuyan’s comments, arguing that a sitting judge should exercise restraint when the matter is before the judiciary. Their objection centred not necessarily on whether voter exclusion deserved scrutiny, but on whether a judge should express a view publicly while the court is seized of the issue.
Justice Venkate Gopala Gowda (retired), however, defended Justice Bhuyan, arguing that there was no impropriety in a judge discussing constitutional rights with law students. He questioned why remarks about disenfranchisement should be treated differently from public discussions of other constitutional questions.
(Edited by Ajeet Tiwari)
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