Democracy’s own goal

In 2015, an ECI outreach worker came to Fatima Khatun’s village in Murshidabad and told her she could vote. She was thirty-one. No one had ever told her that before. She got herself enrolled, received her Elector’s Photo Identity Card, and voted in 2019 and again in 2024. Last month, her name disappeared from the draft electoral roll. She does not know why. She does not know how to find out. She does not have a lawyer. The Supreme Court’s May 27 judgment in Association for Democratic Reforms vs Election Commission of India has an answer for her.

She may seek judicial review. That answer tells you everything about what this judgment costs. To understand the full weight of that cost, begin not with the judgment but with the Constitution it interprets. When the constituent assembly debated electoral administration, it made a deliberate choice. Provincial governments had, under the Government of India Act 1935, controlled electoral rolls. The record was not reassuring. Franchise was narrow, enumeration was selective, and exclusion followed familiar lines of caste, class, and gender.

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The Constitution’s answer was a centralised, independent Election Commission – an institution whose purpose was to ensure that the expanding franchise reached every eligible citizen. The ECI was not designed as a neutral umpire between political parties. It was designed as the custodian of inclusion. That franchise had a clear trajectory. Under the 1935 Act, roughly three per cent of the population could vote. At independence, the Constitution extended it to approximately twenty per cent.

Universal adult suffrage made it available to every citizen regardless of property, literacy, religion, or gender. Each constitutional moment moved in one direction: more people, not fewer. The story of Indian electoral democracy, for all its imperfections, has been a story of deepening inclusion. Fatima Khatun was part of that story. The Special Intensive Revision has removed her from it. The Supreme Court has said this is constitutional. Fairness requires acknowledgment of what the court has done well. Bihar’s electoral rolls were genuinely compromised. Over two decades had passed since the last SIR.

Large-scale migration and rapid urbanisation had produced rolls carrying duplicates, dead voters, and multiply-recorded migrants. The ECI’s decision to act had statutory support. The court correctly locates it in Section 21(3) of the Representation of the People Act, read with Article 324. More importantly, the court has drawn a constitutional line that needed drawing. The ECI may examine citizenship, but only for the limited purpose of determining inclusion or exclusion from the roll. Deletion is not a declaration of non-citizenship. Final adjudication remains with the competent authority under the Citizenship Act, 1955.

Persons deleted from the 2003 Bihar roll on citizenship grounds must be referred to that authority within four weeks – and if found to be citizens, restored. Without this guardrail, the SIR could have quietly become a backdoor National Register of Citizens. The court refused that outcome. It is a genuine and important contribution. But the guardrail protects against one specific danger. It does not address the broader democratic damage the exercise has already caused.

And it does nothing for Fatima Khatun, whose deletion has nothing to do with citizenship. Section 21(3) authorises revision of existing electoral rolls. Revision means examining what exists, correcting errors, adding omissions, removing invalid entries. It does not mean demolition. What the ECI conducted was not a revision. It discarded rolls on which successive Commissions had worked for nearly three decades. Through painstaking annual summary revisions, the ECI had achieved approximately 99 per cent accuracy.

The 2024 general election – the largest democratic exercise in human history – was conducted on these very rolls without challenge. To discard that accumulated work and demand fresh verification from over a billion voters is not a Special Intensive Revision within the meaning of the statute. It is a categorically different exercise, one that would require different legal authority and far more rigorous procedural safeguards. The Supreme Court did not engage with this distinction. That is not a peripheral omission. It is the judgment’s foundational failure.

The choice of the 2003 roll as the verification baseline deepens the damage. Every voter enrolled in the last 21 years must re-verify. This cohort is not a random cross-section of the electorate. It is the young first-time voter. The woman enrolled through the ECI’s own SVEEP programme. The migrant worker who, after years of displacement, finally secured a place on the rolls. These voters are the product of deliberate democratic investment – public money, sustained outreach, and institutional effort directed at exactly the goal of expanding participation.

Fatima Khatun is one of them. The court has validated a process that treats all of them as presumptively suspect. Then there is the quiet erasure of the Elector’s Photo Identity Card. The EPIC was issued by the state as the definitive proof of electoral belonging. It has been set aside without explanation and without alternative. For tens of millions of Indians – Fatima Khatun among them – it is the only documentary proof of identity they possess. The court accepted the ECI’s revised document framework as a considered exercise of administrative discretion.

That is a description. It is not a justification. For the wrongfully deleted, the court offers judicial review. This answer deserves to be examined carefully, because it reveals the judgment’s deepest blind spot. Judicial review is a remedy designed for citizens who know their rights have been violated, have access to legal counsel, can afford the time that litigation demands, and possess the documentary record to support a petition. It works for the resourced and the informed. For the voter who discovers her deletion only when turned away at the polling booth, who earns daily wages, who has never seen a draft roll and does not know what one is – judicial review is not an open door.

It is a locked door with a notice explaining where the key might theoretically be found. The citizenship referral mechanism carries the same infirmity. The competent authority under the Citizenship Act has no infrastructure to handle millions of individual referrals. The court has set no penalty for non-compliance with its own timeline. A constitutional direction without enforcement is an expression of hope, not a legal protection. The numbers make the abstraction unbearable. Over 90 lakh names were deleted from draft rolls in West Bengal alone. Nearly 74 lakh in Tamil Nadu.

These are not projections of potential harm. The harm has already occurred. The court’s protections arrive after it. There is a principle that runs through every constitutional democracy worth the name: the burden of justifying exclusion rests with the state, not the citizen. A person does not need to prove their right to belong. The state must prove the grounds for removing them. This judgment reverses that burden entirely. It places on each of a billion voters the obligation to re-establish their place in the electorate – not because their eligibility is in doubt, but because the ECI chose to start from scratch. That reversal has no constitutional basis.

The court provided none. The ECI was created because governments disenfranchised voters. It was given constitutional independence so that no political authority could manipulate the rolls for partisan advantage. That design assumed the Commission would always be on the side of inclusion. The SIR has made the Commission itself the instrument of exclusion. The court has upheld that instrument. In doing so it has not merely ruled on an administrative exercise. It has blessed the inversion of the founding logic of Indian electoral democracy. Clean rolls are essential. No serious argument exists against that.

What is equally essential is that cleaning rolls does not itself become a mechanism for removing the poor, the mobile, and the newly enfranchised from the democratic process. There are better ways. Aadhaar-linked deduplication, cross-referencing with death records, targeted revision of genuinely problematic constituencies – none of these require discarding thirty years of work or treating 2003 as year zero.

Fatima Khatun voted in 2019. She voted in 2024. She did everything the state asked of her. She is not a ghost entry or a duplicate or a dead voter. She is a citizen who was found, enrolled, and then erased – by the very institution that found her. The Supreme Court has told us that process is constitutional. It has not told us what she is supposed to do on election day.

(THE WRITER IS AN AUTHOR, LEGAL COMMENTATOR AND EDITOR-IN-CHIEF OF INDIACOMMENTARY.COM)