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What’s the counterweight to ECI? A Supreme Court of not-yets, not-nows, not-heres

We examined the Supreme Court’s record over the past six years in cases involving the ECI, and found that the Court has rarely told the Commission ‘no’.

The Indian Express’ report that two Election Commissioners objected on record 14 times in 10 months to steps taken by the Chief Election Commissioner has turned public anger toward the Nirvachan Sadan. Pratap Bhanu Mehta insisted that the SIR mess is a joint production of the ECI and the Supreme Court. The Commission is answerable to Parliament only through impeachment, which the Speaker and the Chairman—both drawn from the ruling party—refused to entertain in April. In practice, the Supreme Court is the only truly independent body that can hold the ECI to account. Yet legal commentators have argued that, in this lopsided system, the Court has been a poor counterweight.

We examined the Court’s record over the past six years in cases involving the ECI using TheProfesseer’s CourtsDataLab, and found that the Court has rarely told the Commission “no”. Instead, it has resorted to not-yets, not-nows, and not-heres. In the rare instances that it has finally acted, it has either been too late or inadequate.

Not-nows and not-yets

We tracked every time the Supreme Court had to review the ECI’s decisions over the last six years with a looming election. In all these cases, the Court had a deadline—the election date—beyond which some remedies would cease to be meaningful. The discussion below shows the results of our inquiry.

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,........

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