Bihar to Bengal, the great Indian disenfranchisement now has the Supreme Court’s approval

The Supreme Court judgement on May 27 giving its stamp of approval to the special intensive revision of the electoral rolls in Bihar marked a sharp departure from the enumeration exercises in the decades after Independence, in which people defined the voter rolls and not the other way around.

The court held that the special intensive revision in Bihar is constitutional and that the procedures undertaken by the Election Commission of India do not violate any election laws.

Historically, in India, if there were doubts about a person’s citizenship, the burden of proving this has always been on the state – not on the voter.

With this judgement, the Election Commission will now get to choose who gets to be on the electoral roll, despite citizens already having voted in the previous elections.

The Election Commission conducted a special intensive revision of the rolls in Bihar between July and September 2025 to delete the names of voters who have died or who have migrated, as well as to exclude the “names of foreign illegal immigrants”. The exercise has since been expanded to states across the country.

The exercise has proved to be controversial. In July 2025, the Association for Democratic Reforms took the Election Commission to court, contending that the commission did not have the power to conduct such a revision. It also asked whether the commission’s decision to conduct the revision was legitimate, whether the procedures were constitutionally valid and, most importantly, whether the commission has the power to scrutinise the citizenship of voters already on the electoral list.

In its judgement on May 27, the court began with an exercise in anachronism. It started by invoking fifth-century Bihar and compared modern electoral rolls with what, in its opinion, may have been their ancient equivalent.

Such an analogy, even in its most rudimentary form, is ahistorical. The premodern state knew very little about its subjects, their locations, wealth and landholdings, nor did it have well-established cartographic traditions to navigate the complexities that the modern state does.

The judgement also ignores the spirit of inclusiveness that motivated enumeration exercises in the decades after Independence.

In 1951, for instance, before the first general election, voters were registered after a house-to-house enquiry, and those who were not present at home were also incorporated, except for those in prison.

Special concessions were made for refugees who entered India after July 19, 1948, and had to apply for Indian citizenship. Those who entered before that date automatically became Indian citizens.

Historian Ornit Shani, in her 2017 book How India Became Democratic: Citizenship and the Making of the Universal Franchise, quotes a letter from AC Datta, President of the East Bengal Minority Welfare Central Committee, to the President of the Constituent Assembly and future President of India, Rajendra Prasad, in 1948: “We should have vision first and revision afterwards.”

In 2025, the special intensive revision took place with an already mapped polity, well-developed digital technology and a fixed geographical terrain – but it does not have enfranchisement as its vision.

The Supreme Court judgement would have done well had it made a more historically relevant comparison with electoral revisions in the decades after Independence or even the colonial processes of enumeration. Instead, it overemphasised what the American political scientist James C Scott refers to as the “high-modernist confidence” of the state.

The judgement should have especially considered the notion of popular sovereignty on which the Constitution of India was drafted – the simple principle that a democratically elected government sustains itself on account of the consent and popular will of the people. Instead, the special intensive revision turns this principle on its head.

The principle of universal franchise that was the basis of electoral revisions in the decades after Independence, where the poor and disadvantaged too could stake a claim in the democratic processes through their place in the electoral roll, is missing in this exercise.

Members of marginalised communities with limited documentation live perpetually under the stress of having to prove their belonging to the state. The Election Commission has ignored the fact that rural voters working in the informal economy are unlikely to have the same level of documentation, or the time and resources to submit multiple forms and appear for hearings, as college-educated urban voters working in the formal sector.

The constitutional burden of clean electoral rolls and the digital linking of various forms of documentation, based on arbitrary processes, now rests on the voter. The cost of this administrative measure is the exclusion of some voters, who, perhaps, were unable to participate in the revision exercise or whose cases for exclusion were never explicitly stated, as they never received hearings. This is more dangerous than including wrongful voters on the rolls.

This serious risk of disenfranchisement was not adequately taken into consideration in the Supreme Court judgement.

Furthermore, the court, in minimising precedents such as Lal Babu Hussein vs Electoral Registration Officer (1995), set a dangerous example by allowing a person’s history of electoral enrolment to be questioned during the special intensive revision and reassessing their citizenship.

In the Lal Babu matter, the court held that electors whose names have already been on the rolls cannot simply be presumed to be non-citizens. “...if the revision of the roll is not possible on account of paucity of time, they will [be] governed by the previous roll,” it ruled.

But this was not the case during the 2025 special intensive revision in Bihar and West Bengal.

In Assam, as a result of such presuppositions have led to arbitrary and tenuous adjudications, resulting in millions of voters being disenfranchised and labelled as “doubtful voters”, curtailing their fundamental rights.

In Bihar, the Supreme Court judgement also opens itself up to a contradiction. Even though a voter’s presence on previous rolls need not necessarily be valid, they have to link themselves to the special intensive revision conducted in 2003. But there is no evidence to suggest that the 2003 electoral rolls were entirely accurate.

Lastly, as the judgement indicates, election law dictates that when a special intensive revision takes place, it must be held in phases across the nation. But when it was conducted in West Bengal, an additional criterion was added: the “logical discrepancy” category that resulted in 1.36 crore voters being served notices.

In the end, 27 lakh electors in West Bengal were struck off the list because there were mismatches in their fathers’ names, variations in parents’ ages, large age gaps between parents, or irregularities in grandparents’ ages, according to the Sabar Institute.

The question of whether the procedures undertaken by the special intensive revision can differ from state to state is unclear, and the grounds on which such procedures may vary also raise questions about the impartiality of the commission.

In the end, the Supreme Court’s endorsement of the manner in which the special intensive revision is being conducted signals a shift from “We, the people” enshrined in the Constitution of India to the question of “Who are these people?”

Sneharshi Dasgupta is a Research Fellow at the Vidhi Centre for Legal Policy, New Delhi. Views expressed are personal.