The Supreme Court examined whether the Election Commission can deviate from prescribed rules while conducting a Special Intensive Revision of electoral rolls under Article 324 and Section 21. Senior Advocate Rakesh argued that the ECI’s powers are wide but must remain fair, just, and constitutionally regulated.
New Delhi: The Supreme Court of India on Wednesday resumed hearing a public interest litigation raising serious questions about electoral transparency and the voters’ right to information. The matter is being heard in a case that challenges aspects of the voter verification and enrolment process.
Senior Advocate Rakesh began by explaining the constitutional scope of Article 324. He submitted that Article 324 confers wide powers on the Election Commission, covering administrative, adjudicatory and legislative functions.
The matter is being heard by a Bench comprising Chief Justice of India Justice Surya Kant, Justice Joymalya Bagchi.
According to him, the Special Intensive Revision (SIR) of electoral rolls in question is legislative in character, as it applies uniformly across constituencies and does not decide individual cases.
He stated that there are three judgments which clarify what constitutes legislative action. While he chose not to read them in detail, he pointed out the relevant portions for the Court’s consideration. He referred to Cyanamide, asking the Court to note paragraphs 4 to 7, 13, 14 and 27.
The second case cited was Sri Sitaram Sugar, a Constitution Bench judgment. The third was State of Punjab versus Tehal Singh (2002, Volume 2 SCC, page 7), particularly paragraph 6.
He explained that the first two cases relate to price control orders under the Essential Commodities Act, while the third concerns delimitation for Gram Sabha areas under the Panchayati Zilla Parishad Act.
Senior Advocate Rakesh then relied on judicial observations which state:
“The third observation we wish to make is price fixation is more in the nature of legislative activity than any other. It is true that with the proliferation of delegated legislation, there is a tendency for the line between legislation and administration to vanish into an illusion. Administrative quasi-judicial decisions tend to merge in legislative activity, and conversely, legislative activity tends to fade into the present in appearance of an administrative or quasi-judicial activity. Though difficult, it is necessary, I am relying on this portion, that the line must sometimes be drawn as different legal rights and consequences may issue.”
He added that this was sufficient for his purpose, as these judgments support his submission that the SIR order is legislative in nature. He explained that this distinction becomes important when interpreting Section 21(3), which requires recording of reasons.
He pointed out that while the rules prescribe a normal summary procedure, they also contemplate deviation. Therefore, any deviation must have a clear and direct nexus with the reasons recorded.
Senior Advocate Rakesh further submitted that Articles 324 to 329 of the Constitution must be read together as part of a single scheme.
He emphasised:
“Hence, we must construe Article 324 to 329 as an integral part of the same scheme, collaborating rather than colliding with one another.” He added, “Kindly mark this. Even I submitted that they are in a symbiotic relationship.”
He explained that legislative powers concerning elections vest only in Parliament, and the Election Commission steps in only where Parliament has not made provisions. He argued that the power exercised through the SIR order should therefore not be seen as excluded.
Referring briefly to Anup Baranwal, he stated that the issue of exclusion had already been addressed. He also relied on paragraph 15 of his submissions, where he noted that earlier SIRs had been conducted and that this context was considered in Lal Babu.
Senior Advocate Rakesh then clarified that the Election Commission’s powers for revision are not barred but expressly permitted. He referred to Section 15, which provides that an electoral roll must be prepared for every constituency under the direction and control of the Election Commission. He argued that Article 324 is expressly preserved through Section 15.
At this point, the Chief Justice observed:
“There is a power vested in the Election Commission even over and above what the legislature has infused in 21-2.”
Senior Advocate Rakesh responded in agreement, stating that Sections 21(2) and 21(3) are parliamentary provisions and Parliament itself envisages that the Election Commission can otherwise prescribe procedures.
He further explained that revision of electoral rolls must ordinarily take place before each State Assembly election. However, he submitted that the Election Commission can direct otherwise depending on prevailing circumstances.
The Chief Justice then illustrated the scope of power by stating:
“For example, for the revision of electoral rolls, 21(2) enabled you to go even beyond those rules, because those rules are subject to your power. You have an overriding power over those rules. Then assuming that in exercise of that overriding power, you notify something which is over and above those statutory rules. Then subsection 3 absolves you even to follow that your own notified criteria, rules or regulations of 21(2) when you undertake special revision under subsection 3.”
Senior Advocate Rakesh replied affirmatively and clarified the distinction between subsections (2) and (3). He explained that subsection (2) applies before every election, while subsection (3) permits revision even when no election is imminent.
Justice Bagchi then queried:
“sub section-3 of 21 have the same nature of inquiry or preparation of the same width. it is so?”
Senior Advocate Rakesh responded that this was his humble submission. During further discussion, Justice Bagchi observed that while Section 21(3) is wider than Section 21(2), the interpretation of the word “prescribed” required careful consideration, as it refers to rules.
Justice Bagchi further pointed out that Rule 13 governs Form 6, which lists six documents, whereas the SIR requires eleven documents. He asked the Election Commission to clarify whether it can increase or eliminate documents prescribed under the rules, stating:
“We would call upon you to answer. Can you increase the number of documents or eliminate documents which are there for let us say place of birth or place of residence, and say no, we will not look into the document which is there in rule 6. We will look into only 11 documents. This is the question we would like you to clarify. Because there cannot be any debate that it is not untrammeled, but it is unique to the election commission.”
Senior Advocate Rakesh responded by stating that he was seeking judicial approval for the authority to deviate from the rules. He added that completely discarding the rules would be a separate issue.
Justice Bagchi reiterated the concern by asking whether the nature and quality of inquiry remain the same under subsections (2) and (3). Senior Advocate Rakesh explained that when deviation occurs under subsection (2), prescribed rules exist and deviation is from those rules.
The Bench then observed that even if the non-obstante clause in subsection (3) is accepted, the key issue remains that a special intensive revision can lead to civil consequences for existing voters.
Senior Advocate Rakesh responded clearly that deviation cannot violate Article 326. He stated that the power is not absolute and must satisfy constitutional standards of fairness. He assured the Court that the Election Commission would have to justify the process and satisfy the Court that it is just and fair.
Justice Bagchi concluded with a cautionary remark:
“No power can be untrammeled, no power can be completely unregulated. While the power should not be diluted, but it should not be left an unruly horse.”
Senior Advocate Rakesh stated:
“I have to demonstrate to Your Lordship that my SIR is fair, just, transparent, and takes care of the ease of voters. And here the prescribed rules, here the existing prescribed rules, are in the nature. Let us even say subsection 3 dilutes it. It doesn’t say that you have to follow them.”
He clarified that his reference to Section 21(2) was only to show that under that provision, there exists a defined set of rules. He said:
“I was referring to 21(2) to demonstrate this, that under 21(2), we have a set of rules in front.”
The Bench responded by observing:
“You have given a new insight to that otherwise. But generally, we would read it as with regard to the time at which you are invoking powers under succession. That would be limiting the scope of all that you can say to your argument is effective. But ultimately, it is safer, let us say in speaking in your favor, it is safer to repossess the power into a succession theory than succession two. It gives you, Mr. Dwivedi, it gives your client more elbow space.”
Senior Advocate Rakesh then drew attention to other statutory provisions and stated: “mention section 23,24,24 separately.” He explained that unlike Section 21(2) or 21(3), Sections 23 and 24 do not contain any “unless otherwise” clause.
He emphasised that Section 25 is framed differently and expressly provides:
“notwithstanding anything contained in section 23 and 24, the election commission may at any time for reasons to be recorded in writing, direct the revision in the prescribed manner of the electoral roll or part of constituency in any listing country.”
Senior Advocate Rakesh then referred to the legislative history of the statute and stated:
“This is the 1956 amendment, which is after the first election and before the second election.”
He pointed the Court’s attention to Section 15 and said:
“Section 15 at the bottom of the page 127.”
He explained that Sections 21 to 25 were substituted by this amendment and read out the statutory language:
“The electoral role for each constituency shall be prepared in the prescribed manner by reference to the qualifying date and shall come into force immediately upon its final publication in accordance with rules made under this Act. The said electoral role shall thereafter be revised in every subsequent year in the prescribed manner by reference to the qualifying date.”
He then emphasised that even in this substituted framework,
“Now, still that expression is not there unless otherwise.”
Senior Advocate Rakesh continued by drawing a distinction between subsections (2) and (3) of Section 21. He submitted:
“So now 21(3) as it now stands was inserted in 1956, but in 21(2) that expression is still not there.”
He explained that under Section 21(2), a defined set of rules exists and any deviation must be understood in the context of those rules. He stated:
“21(2), we have a set of rules before that and if deviation is contemplated, so it has to be in the context of rule.”
He further pointed out that Rule 25 itself is expressly confined to Section 21(2) and does not refer to Section 21(3). On this basis, he concluded:
“Now rule 25 also expressly limits itself to 21(2). It has no reference to 21(3). So my submission is that deviation authority under 21(3) is wider than the deviation authority under 21(2).”
Senior Advocate Rakesh then referred to a specific challenge raised in earlier proceedings and stated:
“The question has been filed that why are you holding the election in 1983 based on an electoral role finalized in 1979 without revising it as mandated by 21(2)(a)?”
He reiterated the settled legal position on the effect of electoral roll defects by stating:
“Then to reiterate that once again that even if electoral rolls of 1979 were invalid, that would not affect the validity of the impugned elections.”
He indicated that he would be concluding his submissions in the next sitting and added:
“I’ll try to conclude tomorrow.”
Senior Advocate Rakesh then addressed the argument raised by the opposing side on arbitrariness and due process. He stated:
“I will have to deal with that manifest arbitrariness is equal to full due process of the American kind, which Mr. Singhvi raised forcefully. Manifest arbitrariness is also now well-defined expression.”
The Bench responded by observing:
“We don’t require to spend so much energy over it.”
In reply, Senior Advocate Rakesh clarified his intent and stated:
“I will spend a little time only to show that American due process what is rejected by Dr. Ambedkar and nine judges bench of this court.”
The matter has been listed for further hearing tomorrow at 2:00 pm, with the Chief Justice of India stating that additional time would be granted in case of any delay.
Case Title:
Association for Democratic Reforms and Ors. versus Election Commission of India,
W.P.(C) No. 640/2025 (PIL-W)
