The Supreme Court often delays election-related rulings until they lose impact. In April 2024, the Court refused to help displaced Manipur voters because it was too late. Gautam Bhatia calls this “deciding by not deciding.” By waiting until after results, the Court frequently avoids checking the ECI’s power during active polls.
Let us consider two possible scenarios. The first is when the Court disposes of a petition with a decision on record allowing citizens to criticise its actions. The second, more insidious, is the one where the Court intentionally delays its decision until it is far too late for the verdict to have any real consequence. Judicial evasion, or “deciding by not deciding”, as Constitutional lawyer Gautam Bhatia calls it, allows a challenged government action to proceed without deciding its legality and defers to the ECI by default. We see many such instances in the figure below.
In many cases, the Court cites the proximity of polling as a reason to refuse intervention, and reneges on its higher responsibility as a check against the ECI. This is the first type of deference mentioned above. In April 2024, when displaced voters from Manipur sought special voting arrangements, the Court refused to intervene “at this belated stage”. In November, it dismissed Jan Suraaj’s challenge to Bihar’s by-election schedule because it was “too late to interfere”. These were explicit decisions where the Supreme Court deferred to the ECI’s stance—irrespective of one’s opinions on their correctness.
However, in 15 of the 44 disputes, the Court reached a final decision after the election took place. The Bihar and West Bengal SIRs fall within the ‘acting too late’ category. In Bihar’s case, petitions were filed in July 2025. That month, the Court asked the Commission merely to “also consider” Aadhaar among acceptable documents. In August, it directed the Commission to publish the names of deleted voters with reasons. Only in September did it expressly direct that Aadhaar be accepted as proof of identity. These were useful orders, but they were interim ones. Neither did the court decide on the central question of whether the exercise was lawful at all, nor were the interim reliefs by themselves consequential enough to prevent the damages SIR could potentially cause. In November 2025, Bihar voted on these revised rolls.
On 11 November, as the SIR was extended to other states, the Court went further and directed high courts to keep in abeyance or defer any challenges before them, ensuring that no other court could step in while it waited. Arguments on the validity of the exercise began only after Bihar’s results were declared, and the judgment came on 27 May 2026, six months after the results and four months after the judgment was first reserved. In those four months, West Bengal, Assam, Tamil Nadu, and Kerala went to the polls on rolls prepared through the same exercise. By the time the Court ruled, in the ECI’s favour, the question had long ceased to be live. One wonders what remedy the Court could have offered to the wronged voters, had its finding been otherwise. A court that waits until after the vote to examine the process may find that it has nothing left to remedy.
West Bengal’s challenges repeated the pattern on a larger scale. The challenge to the SIR was filed in November 2025. In January 2026, the Court directed the Commission to display the names of the 1.36 crore voters flagged for “logical discrepancies” and to give them more time—but did not stay the exercise. Appellate tribunals were set up in March; polling followed on 23 and 29 April. Results were declared in May. Most of the appeals remain pending. On 28 September this year, with about 38 lakh appeals by voters pending in West Bengal, Chief Justice Surya Kant declined to advance the hearing before the 6 October bypolls in Nandigram and Rejinagar stating “these are just by-elections.” The repeated practice the Court shows is simply to not take action until it realises it is too late to take action. Any bad faith actor could just learn that the clock is its ally—whatever it does before the Court sits becomes a fait accompli.
Timing, in other words, is not incidental to judicial review of election related matters; it is often decisive. In such moments, a calibrated yet assertive judicial response becomes not an encroachment on democratic institutions, but their necessary guardian. This does not mean courts should run elections or second-guess every administrative choice. It means that where the integrity of the franchise is genuinely at stake, they must be willing to act while action can still make a difference.
Not-us and not-here
Asked in August 2026 to reconsider the cut-off year for Sikkim’s intensive revision, the Court called it “essentially a policy decision against which no political party or other stakeholders from the State of Sikkim have come forward to oppose” and went on to say that the “goal post cannot be shifted in the middle of the exercise”. The same instinct surfaced in the West Bengal matter a week later. When informed that in 31 constituencies, the winning margin was smaller than the number of voters deleted, CJI Kant asked: “Can the Court direct fresh elections like this?”
In March 2023, in the Anoop Baranwal case, the Court had held that the executive should not appoint Election Commissioners alone. Parliament overturned that within the year, replacing the Chief Justice on the selection panel with a Union minister. On 22 March 2024, a week after two new Commissioners had been appointed under the 2023 Act, and days after the general elections were announced, the Court refused to stay the Act. Its reason was that any stay “would disturb the 18th General Election” and “lead to chaos and virtual constitutional breakdown”. The Court failed to recognise that the real constitutional breakdown was the amendment itself.
The Court added that “the presence of the two more ECs appointed by the President would bring about a balance and check in the working of the Election Commission”. One of those two, Sukhbir Singh Sandhu, is among the Commissioners whose 14 objections The Indian Express has now published. The ‘balance and check’ the Court promised turned out to be, at best, an overwritten internal comment on a file. Three years hence, decisions remain pending on the constitutionality of this amendment.
Irreversible consequences and impoverished remedies
Even when the Court supposedly grants remedies, they are grossly inadequate. The SIR deleted over 1 crore names in its latest phase. The Court’s answer was not to stay the deletions that were challenged. Instead, it set up 19 appellate tribunals of former high court judges and left “the mechanism to be evolved … entirely to the discretion of Hon’ble the Chief Justice of the High Court”. On 13 April, with more than 34 lakh appeals filed and polling on 23 and 29 April, it held that deleted voters could be restored only if a tribunal decided their appeal by 21 or 27 April—two days before the poll dates. It added that “mere pendency of appeals preferred by excluded persons before the Appellate Tribunals shall not entitle them to exercise their right to vote”.
There is no sense or method behind this arbitrary decision. A simple back-of-the-envelope calculation would expose its absurdity. To clear 34 lakh appeals by 21 April, each of the 19 tribunals would have had to decide about 22,000 appeals a day. What they actually managed was about 32 a day, as per later affidavits. At that pace, appeals would still remain pending for multiple general elections from now. The burden of the Commission’s high-handedness has fallen on the citizens. As The Indian Express exposé revealed, more than 16 lakh of those pending appeals were not even filed by voters. Rather, they were filed in bulk against voters whom judicial officers had already cleared—reportedly without the knowledge of the two other Commissioners.
Former Calcutta High Court Chief Justice TS Sivagnanam, who headed one of the tribunals, has resigned. Individual voters who came to the Court after the poll got a “request” to the tribunal to decide “preferably within four weeks”. In at least 31 constituencies, the number of deleted voters with pending appeals exceeds the winning margin. On 11 May, the bench replied that it “can only improve further adjudication of appeals”. These are non-remedies that shoddily sweep the irreversible ill-effects caused by the ECI’s actions under the rug.
What one expects from the Supreme Court
Here are some questions for the Court to ask itself. Why are election dates so sacrosanct that they cannot be deferred, given the scale of the deletions? Alternatively, if election dates are indeed sacrosanct and beyond the Court’s competence to modify, why are the deletions themselves so sacrosanct that the Court cannot stay them until the next election—giving due time for judicial review? And if the Court insists that it can neither change election dates nor do anything about deletions—why even try to bolt the stable door after the horse has bolted?
The Commission’s independence was not taken in one stroke. As legal scholar Tarunabh Khaitan puts it, our Constitution has been killed by a thousand cuts over the years. To extend the analogy: each wound was neglected, one case after the next, by a Court that kept finding it was too early, too late, or not its place to say. True to earlier patterns, on the eve of the 10 October protests, the Court asked the executive to “reconsider” restrictions, “reassess” closures, and impose only “proportionate” restrictions. The following day, protests were thoroughly stifled and free speech smothered across the nation. Over 2,500-7,000 people were detained. The Court “reviewed” these actions on 11 October—two days too late.
Srikanth Rajkumar is founding engineer, and Bhavya Sudhir and Gokul Sunoj are lawyers, at TheProfesseer. Their X handles are @SonOfRajkumar, @BhavyaSudhir42, and @GokulSunoj respectively. Views are personal.