Author: S. Pratheeksha. Pai, 2nd year BA.,LLB student of S.D..M Law College, Mangalore.
INTRODUCTION
The Preamble to the Constitution of India highlights democracy as an essential, embodied value and outlines political justice as a core objective. A country is truly democratic only when all citizens enjoy equality in electoral participation and the will of the people remains supreme in all aspects. To uphold this vision, Article 324 to 329 of the Constitution of India establishes a robust constitutional framework that ensures free, fair elections and guarantees the inclusion of all eligible voters in the electoral rolls. Even though is known as a country having both constitutionalism and constitution the question of existence of checks and balances which is one of the pillars of constitutionalism in India is a debatable aspect .Even though the Constitution of India does not explicitly mention the checks and balances but the Article 61,75,85,86,103,108,111,118,123,142 etc. The doctrine of separation of powers in the Constitution of India has implicitly expressed through various provisions including Article 79,361,50 ,121etc but the separation is not a watertight one.
“RIGHT TO VOTE” AN EARNED RIGHT BY THE INDIAN’S
As a colony under British rule, the Right to Vote in India was severely limited and restricted to a few individuals. Indian Council Act, 1861, which marked the beginning of representative institutions, had members nominated by the Viceroy while the Indian Councils Act of 1892 expanded the council and introduced a very limited election. With the passage of Morley Minto Reforms of 1909, the number of members in the Legislative Council was increased from 16 to 60 and yet, the electorate remained small. This act also introduced the separate electorate for Muslims. The Government of India , also known as Montagu-Chelmsford Reforms introduced a diarchy system of governance. For the first time, direct elections were introduced but the voting rights were only with a small percentage of male population. The Government of India Act of 1935 expanded the right to vote and provided provincial autonomy. Despite these successive acts, the right to vote remained with a handful of people. The Right to Vote that the citizens of India have now is the result of long struggle .With the adoption of the Constitution of India the provision of Universal Adult Franchise was also adopted .This was not only significant but also historic because regardless of caste, creed,race,gender,ethnicity everyone is given equal rights to vote and to participate in democratic process.
LANDMARK APEX COURT JUDGMENTS ON RIGHT TO VOTE
Through its different judgments the Supreme Court of India has clarified and highlighted the legal position of Right to Vote as a Constitutional Right . In the landmark case of Rajbala v. State of Haryana the Apex court held that Right to Vote is a Constitutional right of a citizen .In Jyoti Basu case reaffirmed that voting is neither a fundamental nor a common law right , but a statutory one and in the N.P Ponnuswamia and Kuldip Nayar case the Apex court held the same view .
SPECIAL INTENSIVE REVISION AND THE CURRENT ISSUES RELATING TO IT IN INDIA
The Special Intensive Revision (SIR) is a comprehensive, door-to-door verification and update of electoral rolls undertaken by the Election Commission of India (ECI). Its purpose is to ensure error-free voter lists by including all eligible voters and excluding those who are not. The legal basis for this process is traced through Section 21(3) of the Representation of the People Act of 1950, as well as Article 324 of the Constitution of India.
While the SIR is highly important for guaranteeing fair elections in India, recent newspaper reports have highlighted mass deletions and voter disenfranchisement resulting from the ECI-led process. Approximately 13 crore voters have reportedly been removed across various states and union territories, sparking widespread protests by civil society organizations demanding the resignation of the Chief Election Commissioner of India.
According to an article published in Frontline Magazine on September 11, 2026, a staggering number of voter deletions occurred across numerous regions. These include the states of Uttar Pradesh, West Bengal, Tamil Nadu, Bihar, Kerala, Madhya Pradesh, Rajasthan, Gujarat, Karnataka, Maharashtra, Andhra Pradesh, Telangana, Haryana, Jharkhand, Goa, and Arunachal Pradesh, as well as the Union Territories of the Andaman and Nicobar Islands, Puducherry, and Delhi.
KEY CHALLENGES OF SPECIAL INTENSIVE REVISION
The marginalised population including daily wage workers , tribal communities , the homeless people often lack formal documents for voter verification, risking and at the same time a weak revision will lead to inclusion of illegal immigrants in the electoral rolls . It also leads to inadequate public consultation as what happened in Bihar’s 2025 SIR of electoral rolls .It also involves political manipulation risks .
COMPARISON WITH CANADA
India follows the Canadian model of Federalism, so by making a comparison with Inspire Democracy which is Election Canada’s national outreach program . Through research that identifies people who cannot or who find it difficult to participate in federal elections, it also ensures that all eligible Canadians can exercise their democratic rights to vote and to be a candidate to ensure high participation in the electoral roll updates . If India also adopts such a system then the shortcomings of this SIR would not have been there .
COMPARISON OF SEPARATION OF POWERS OF INDIA WITH THAT OF USA
The doctrine has been mostly incorporated in the U.S Constitution. (Article I,Section 1) says that all ‘ legislative powers shall be vested in a Congress’ .( Article II, Section II ) says that “ executive powers shall be vested in President”and Article III,Section III) says that “ the judicial powers shall be vested in one Supreme court and in such inferior courts as Congress may from time to time ordain and establish’.In AK ROY (1982) the Supreme Court reiterated stance of Constituent Assembly that there is no strict separation of powers in India because of this reason there are discrepancies in the governmental machinery of India .
VOTING RIGHTS AND THE CONSTITUTIONAL REGOGNITION OF THE ONGOING PROTEST.
So the doctrine of free and fair election mandates that the electoral process must follow constitutional principles , including equality , transparency and voting rights. In the landmark case of Indira Nehru Gandhi v. Raj Narain the Apex court held that the free and fair election is a basic structure of the Constitution of India . Thus , infringement of right even though there is no damage as such is actionable in any court of law so the protest in the question is valid and it is not in violation of any provision of the Constitution of India . Article 19 (1)(b) of the Constitution of India guarantees Right To Assembly , however it is not free from reasonable restrictions the restrictions goes as follows :
- The assembly must be peaceful
- It must be unarmed : and
- The State may impose reasonable restrictions underClauses (3) of Article 19 in the interests of Public Order or Sovereignty and Integrity of India .
The whole protest took place in accordance with the Gandhian principle of Satyagraha and non violent civil resistance . So there is no point in preventing such peaceful protest as there was no violation of any of the clauses of reasonable restriction .
ELECTION COMMISSION AND THE SELECTION PROCESS OF CEC AND ECs
Article 324 of the constitution of India lays down and establishes the Election Commission , including the Chief Election Commissioner . The strategic plan of 2016to 2025 of Election Commission of India has laid down few guiding principles; in that the principle “ To ensure participation of all eligible citizens in the electoral process in an inclusive voter centric and voter friendly environment “ The Universal Adult Franchise is the salient feature of Indian Constitution so, a body which should ensure good electoral participation is not following up its vision . The U.S. Supreme Court in Wesberry v. Sanders observed that Right to Vote is fundamental among all other rights in a country which is a debatable aspect in the current scenario .The efficiency of Election Commissioners is based on the level of professionalism they maintain and it is fading away because of many institutional discrepancies .
In an article published on the editorial page of THE HINDU newspaper titled “ Barricades Cannot Silence the Voice of Democracy” the author had mentioned about the changes that had brought with regard to the appointment of ECs that is removal of CJI from the selection committee which weakened the judgment given in the Anoop Baranwal Case .This had indeed created some controversy because the judgment had highlighted the importance of having checks and balances and the Supreme Court held that until Parliament makes a law appointments of the CEC and ECs should be made on the recommendation of a selection committee comprises of Prime Minister , Leader of opposition party in Loksabha and Chief Justice of India .Now the executive has a majority in the selection commission .
SPECIAL EXECUTIVE MAGISTRATE
The detention proceedings of two CJP party leaders have brought a heat among the people about the police officers acting as Special Executive Magistrates as per Section 15 of Bharatiya Nagarik Suraksha Sanhita the state government can appoint a police officer of at least Superintendent of Police rank, Or equivalent, as an Special Executive Magistrate.
Section 163 of Bharatiya Nagarik Suraksha Sanhita empowers EMs to issue prohibitory orders like banning of unlawful assemblies, processions or gatherings of five other more people. Section 170 of this allows a police officer to make a preventive arrest without warrant or Magistrates order if the officer has knowledge that a person will commit a cognizable offence and the detained person can be kept in custody for up to 24hours.Advocate Rebecca John said that “this parallel architecture of preventive action by the police makes a mockery of Article 19(1) of the Constitution, which gives every citizen the right to free speech and the right to assemble peacefully without arms”. The Madras High court has stated that “If Khakhi and the judicial robes are blended, the result is executive anarchy”.
The SEMs is a hot debate topic because it violates the separation of power doctrine. The opinion of judges in various landmark cases given by various High courts of India gives us a clear picture about it. In 2020, a single bench (Justice PN Prakash) of the Madras High Court, in Devi v. Executive Magistrate-cum-Deputy Commissioner of Police. The Judge noted that even during British rule, the police were not given these powers.In 2023, a division bench of Justice N Satish Kumar and Justice Anand Venkatesh, in P Sathish @ Sathish Kumar v. State and another, quashed the Government Orders which empowered Deputy Police Commissioners to exercise S.107 CrPC powers as unconstitutional for breaching the separation of powers.The Karnataka High Court, in Sathi Sundaresh v. State (2007), had cautioned that the preventive proceedings can be “easily made an engine of injustice and oppression”, and hence advocated closest judicial scrutiny. When the scrutiny is exercised by the Police officials themselves, due process might become a casualty, leading to arbitrary detentions.
The Bharatiya Nagarik Suraksha Sanhita of 2023 was brought into effect by replacing the old Criminal Procedure Code which sought to bring out changes in the criminal proceedings of India in accordance with the changing nature of Indian society and also to remove the colonial bias but the Section 15 of this law empowers to establish an unchecked arbitrary police state in India .
WE THE PEOPLE OF INDIA
The Preamble of the Constitution of India opens up with the phrase WE THE PEOPLE OF INDIA Which means that the Constitution was designed and given by the people of India to the people of India but the Constituent Assembly included only few percent of the whole population of India . The Supreme Court in Usha Bharti v. State of U.P. held that the expression “ WE THE PEOPLE OF INDIA “makes the people supreme . But the treatment given by the authorities to the people who are fighting for justice on the streets is a debatable aspect . Ours is a Democratic but slowly or gradually it is becoming Police Raj like what we had seen during the National Emergency of 1975 .
MEASURES FOR ENHANCING THE EFFECTIVENESS OF SPECIAL INTENSIVE REVISION IN INDIA AND THE NEED OF SEPARATION OF POWERS AND CHECKS AND BALANCES IN INDIA
As illiteracy still prevails in some of the parts of India, enhancing public awareness is an urgent need of the hour and following up the Election Commission of India’s vision and objectives is equally important and also following up the provisions laid down by our grundnorm THE CONSTITUTION OF INDIA and also in the The Representation Of The People Act , 1951 is equally important.
As India does not follow strict separation of powers that of America .In the landmark case of Golak Nath v. State of Punjab the judges observed that the three organs of the government are expected to exercise their functions within their limits and keeping in mind certain encroachments assigned by the constitution .
The doctrine of separation of powers is a fundamental principle in a democratic government and the checks and balances are designed to maintain the system of separation of powers , keeping each branch in its place .The Special Executive Magistrates and the exclusion of Chief Justice of India from the selection process of the CEC of India itself reflects that it is an urgent need of hour to have a properly established separation of powers and check and balances system in India or else calling India as a country having both Constitution with Constitutionalism will be unsuitable and the faith that the people of India have over the government will fade and it might lead to revolution which might collapse the whole democratic system of India .
