6 min readSep 30, 2026 06:42 PM IST First published on: Sep 30, 2026 at 06:13 PM ISTRarely in the annals of Indian constitutional history have two key institutions, the Supreme Court of India and the Election Commission, acted in tandem with such shameless disregard for the constitutional purpose of their office, inflicting administrative cruelty on citizens and disenfranchising them. The SIR enterprise, which in principle may be justified, was so badly conceived and executed that it has left citizens reeling. But worse still, at almost every opportunity to set things right, these institutions have responded mendaciously, failing to address any of the core concerns their critics have raised about the fairness and ease of the SIR process. Ritika Chopra and Damini Nath’s reporting in this paper highlighted important questions about the functioning of the Commission. But they were not merely procedural questions. They raised serious substantive questions. The opaque process, including the software protocols, was shifting the burden of proof onto citizens. These days, nothing is shocking. But still, the idea that the Election Commission files appeals en masse against 16 lakh voters in West Bengal who had been found eligible for inclusion is stunning indeed.Also Read | Pratap Bhanu Mehta writes | Wars, pollution, exam scandals – no one did it, it happensThe SIR mess is the joint effect of the Supreme Court and ECI. The Election Commission has the power to ensure the integrity of voting lists. The independence of the Commission requires that the removal of the Commissioners be by impeachment. The only practical mechanism of accountability was therefore the Supreme Court. It should have, without infringing on the Commission’s powers, insisted on the strongest possible procedural and substantive safeguards against the misuse of that power. But the net effect of Court intervention was to legitimise the whole exercise, without any real safeguards. Worse still, the Court, via Justice Joymalya Bagchi, gave ad hominem remarks suggesting those who were excluded could simply vote in the next election. The same sentiment is again repeated by the Chief Justice in his refusal to expedite the hearing of a petition before the by-election in Rejinagar and Nandigram, regarding the pending appeals in West Bengal. They sent a powerful signal that voting rights can be treated casually. In effect, the Lordships and the Election Commission were the guarantors of this right, according to procedures they could make up in whichever way they liked. More than the technical details of the SIR saga, it is this culture of impunity that has become institutionalised.AdvertisementThe lack of self-awareness of these constitutional bodies is staggering. You would have imagined that a Chief Justice, first criticised and socially sanctioned over his remarks (allegedly misunderstood) about “cockroaches”, would be a little more self-aware of what it means to treat citizens as free and equal? It is one thing for the government to adopt a governing style where it regards reasonable demands for accountability as an affront to its authority. The government at least will still, we hope, face a contested election. But for constitutional functionaries, whose mandate is to protect citizens from arbitrary power and disenfranchisement, to act in this manner systematically smacks of incredibly bad judgment. What do we call the resultant constitutional order? The Shameless Constitution? The Constitution of Impunity? This is a condition which the historians of Rome knew well: Where despotic and arbitrary power can inhabit important constitutional offices without formally abolishing them.There is a distressing institutional dynamic at work here. There are legitimate questions to be asked about what the government knew, and what it thought of the legality of the goings-on in the Election Commission. But the truth is, when the Supreme Court of India and the Election Commission conduct themselves with such a lack of constitutional self-awareness, it is hard to focus the blame on the government. One might say that the actions of the Election Commission are at the behest of the government. But the independence of the Court and Election Commission has now become a shield for the government as well. So we are in a curious situation: For once, the Opposition’s ire is directed at constitutional authorities. Ironically, the government gets off lightly.But think of the implications of this dynamic. It is a way of saying that the rot in the system does not begin and end in politics; it saturates a whole elite and perhaps even a generation of voters and public servants. The Supreme Court has once again belatedly raised the question about the appointment procedure for the Election Commission; the executive has inordinate power over the selection process. But the Supreme Court’s own conduct is living proof that the formal appointment process greatly underdetermines the quality of people being appointed, or their conduct in high office. Procedure is no substitute for virtue, nor can it manufacture it.AdvertisementThe BJP’s long-term political strategy has been to cultivate a nihilism about institutions: It thrives on the scepticism about constitutional functionaries. The Election Commission and the Supreme Court have reinforced this script, making it harder to believe in independent institutions. It will take a drastic effort to reverse that tide. The Election Commission’s press notes in response to queries raised about its conduct are a partial response to public criticism: Part admission of procedural impropriety, and partly a commitment to help voters who are facing queries. But while the media and Opposition are mobilised, there is still a curious absence: The mobilisation of the disenfranchised voter. This may be partly because the process is still not complete; the legal measures are still underway. But most voters whose political rights have been snatched away remain outside the zone of visibility. Converting that statistic into political agency has not been easy, and blunts the power of the anger at the process.The resignation of the Chief Election Commissioner might send one signal of accountability. The Court belatedly restoring integrity to the SIR process might send another. But something important has already been destroyed: The citizen’s faith that constitutional institutions, and a few old men, are worth believing in.The writer is contributing editor, The Indian Express