Last week, the Indian Supreme Court delivered an important verdict on the power of the Election Commission of India (ECI) under the Indian Constitution – specifically, whether, and in what manner, it can conduct the Special Intensive Revision (SIR) exercise for the revision of electoral voter rolls. Unlike minor revisions, SIR is a large-scale revision exercise to clean the electoral rolls by removing duplicate entries and names of those who have either migrated or died. They have been at the centre of intense public controversy since early 2025, when the ECI began conducting phase-wise SIRs across India. The exercise was conducted on the eve of elections in the state of Bihar and has since been conducted for other states, including West Bengal, Assam, and Tamil Nadu, triggering fears of large-scale disenfranchisement. The judgment (Association for Democratic Reforms & Ors. v Election Commission of India) emerged from a cluster of writ petitions challenging the constitutional validity of the Bihar SIR, and was delivered on 27 May 2026, by which point the Bihar elections of November 2025 had already been held and a new government formed.

Taking stock of the constitutional and legislative structures, the Court upheld the exercise. It noted that Article 324 of the Constitution, which constitutes the Election Commission of India with the obligation of “superintendence, direction, and control of elections,” confers plenary powers upon the ECI over the preparation of electoral rolls and the conduct of elections, and that Section 21(3) of the Representation of the People Act 1950 provides an enabling provision permitting a special intensive revision “at any time, for reasons to be recorded, and in such manner as [the Commission] may think fit.” The Court also examined the SIR guidelines through a four-limb proportionality analysis: whether the exercise pursued a legitimate purpose; whether there was a rational nexus between the measures adopted and that purpose; whether the means were the least restrictive available; and whether there was a fair balance between the objective and the limitation placed upon the right to vote. On each count, the Court found in favour of the ECI.

The judgment is significant in its own right, and commentaries have been written discussing the misapplication of the proportionality analysis by the Court (see here and here). But beyond the specifics of the case, the legal backdrop in which it was delivered offers important insights for comparative constitutional law scholars, particularly those studying fourth branch institutions, electoral management bodies, and constitutional design.

Fourth Branch Institutions Are Not a Silver Bullet

The creation of independent electoral management bodies, anti-corruption watchdogs, auditors general, and human rights commissions – what scholars have come to call “fourth branch” or “guarantor” institutions – has become a feature of constitutional design, particularly in newer democracies. The logic is to take certain crucial functions out of the hands of politically interested actors and vest them in institutions insulated from the partisan calculus. Elections are an obvious candidate for this kind of protection.

But this logic, while compelling, is incomplete. As Tarunabh Khaitan argues, guarantor institutions are not self-executing solutions. Simply removing power from political institutions and vesting it in a fourth branch body does not, by itself, guarantee good outcomes. The transfer of functions away from elected branches to insulated institutions reduces the domain of political play and democratic contestation in ways that carry their own risks. Badly designed guarantor institutions can themselves become instruments of the very pathologies they were created to prevent.

For guarantor institutions to function effectively, Khaitan identifies three indispensable design requirements: sufficient competence and expertise to perform their functions; sufficient independence from actors with an interest in frustrating the relevant constitutional norm; and sufficient accountability to actors with an interest in upholding it. These factors constitute the difference between a guarantor institution that credibly secures a constitutional commitment and one that becomes an additional vector of risk. The Indian Election Commission is a vivid case study in what happens when these requirements are not given equal weight.

Independence: The Unresolved Problem

The ECI’s independence has been the subject of long-running discussion, including on this blog (see here and here). The appointment of Election Commissioners, including the Chief Election Commissioner, has historically been at the discretion of the ruling executive, with no requirement for consultative or multi-partisan processes. As M. Mohsin Alam Bhat has shown in his detailed study of the ECI’s structural accountability, the precariousness of the ECI’s personnel arrangements has a long and troubling history: from the Congress government’s last-minute appointment and subsequent rescission of additional election commissioners in 1989–90 for what were widely perceived to be partisan reasons to the later creation of additional commissioners expressly to dilute the authority of an activist Chief Election Commissioner in 1993. In both episodes, the Supreme Court’s interventions compounded rather than resolved the structural problem. As Bhat observes, what was “missing in Seshan was the appreciation – and crucially, a theory – of institutional independence.”

The Indian Supreme Court eventually attempted a belated structural correction. In 2023, the Court in Anoop Baranwal v Union of India ordered that Election Commissioners be appointed by a panel including the Chief Justice of India and the Leader of the Opposition, thereby introducing a measure of multi-institutional oversight. Parliament responded with remarkable speed, enacting new legislation that effectively restored executive dominance over appointments by replacing the Court-mandated balanced panel with one that retains the ruling government’s decisive influence. An appeal against this legislation remains pending. The episode illustrates precisely how a ruling party used its legislative majority to undo judicial corrections of institutional design, exploiting the absence of constitutional entrenchment.

Accountability: The Greater Lacuna

If the independence problem is serious, the accountability problem is arguably more severe. As Bhat has shown, the ECI has gradually assumed vast regulatory power through what he characterises as extra-legal modalities: architectural regulation of the electoral environment, nudge-based enforcement of the Model Code of Conduct, and notice-based disclosure requirements. These forms of governance are pervasive and consequential, but they are also, by their very nature, resistant to conventional accountability mechanisms. They operate subtly, they are difficult to subject to legal scrutiny, and they leave wide discretion to the institution. Courts cannot easily assess whether a particular polling station placement, election schedule, or enforcement decision was appropriate. The result is regulatory power that escapes public scrutiny, almost as a structural feature of how it works.

The Indian Supreme Court has been an active architect of this dynamic. Bhat shows that the Court developed an expansive “plenary powers” jurisprudence, confirming that the ECI can regulate all areas “left unoccupied by legislation.” In a series of electoral reform cases in the 1990s and 2000s, the Court used the ECI as its ally – channelling transparency requirements through the Commission while simultaneously applying a “framework of trust” that insulated the institution from accountability. The framework of trust, based on the ECI’s perceived competence, political independence, and ideological neutrality, generated judicial deference rather than scrutiny. While the Court applied demanding transparency standards to political actors under a “framework of democracy,” it treated the ECI’s exercise of power as deserving deference. The consequence, as Bhat argues, is an institution that has accumulated enormous powers without a commensurate framework of operational accountability.

The SIR Judgment: Plenary Powers, Absent Accountability

The SIR judgment is a case in point. The Court has painstakingly demonstrated how the Constitution envisages plenary powers for the ECI over the entire electoral process, and how Section 21(3) of the Representation of the People Act authorises the ECI to conduct a special intensive revision “at any time” and “in such manner as it may think fit” when reasons are recorded. The upholding of the SIR exercise within this framework may seem legally coherent.

But the very coherence of this legal analysis exposes the accountability gap. When the Court affirms that the ECI has plenary powers in unlegislated areas, and when Parliament is either unwilling or unable, given the current configuration of political power, to legislate meaningful constraints and accountability mechanisms, the result is an institution exercising enormous constitutional authority with very limited oversight. In this environment, the accountability of the Commission becomes a central constitutional question. As things stand, there are serious live questions about the ECI’s independence from the ruling party, Parliament is not functioning as a meaningful check, and the courts are largely confined to reviewing the legality and proportionality of specific exercises rather than addressing the structural conditions that generate accountability deficits. A similar framework is evident in the Court’s jurisprudence on the Office of the Speaker, as I discuss here.

Admittedly, the Court could not have resolved the structural problem through this litigation alone. The Court could have intervened more forcefully in how the SIR was conducted, mandating more inclusive procedures from the outset. But the deeper issue is one of institutional design. It can only be resolved through constitutional amendment or legislative reform, requiring a change in the political conditions that produced the present arrangements.

Timing, Irreversibility, and the Limits of Post-Facto Remedies

There is a further dimension that the SIR episode brings into focus: the timing of both the exercise and the judicial response. Conducting an intensive voter roll revision involving individual-level verification, name deletions, and, in some cases, challenges to citizenship status in the compressed window before a state election dramatically increases the risk of errors, and means that those errors are likely to materialise as substantive electoral consequences before they can be corrected.

This is precisely what happened in Bihar. The SIR exercise was conducted ahead of the November 2025 elections. The Supreme Court’s judgment came on 27 May 2026, six months after the elections had concluded and a new government had been formed. Some of the Court’s directions are valuable. Notably, the direction that in cases where the ECI is not satisfied that a person meets the conditions for inclusion on grounds of citizenship, the case must be referred to the competent authority under the Citizenship Act, and that “the competent authority must decide such questions within a reasonable timeframe, and in any event, before the next Parliamentary, Legislative Assembly or Local Body election in the concerned State or constituency, so as to ensure that the individual’s electoral rights are not left in a state of prolonged uncertainty.”

But this very reasoning – that prolonged uncertainty about electoral rights causes serious harm that must be resolved promptly – should equally have supported pausing the exercise before the election. Those whose names were deleted before the Bihar vote have already lost the opportunity to participate in forming the government. And the consequences of disenfranchisement ripple well beyond the ballot box. Reports have emerged that the incoming state government in West Bengal announced it would not extend the benefits of welfare schemes to persons whose names did not appear on the electoral rolls.

The Court is, in part, itself responsible for this timing problem. The litigation was live during the exercise, and the Court did not stay it. It is also worth noting that regular electoral roll revisions occur before every election as a matter of routine. The intensive SIR exercise, given its scope, the attendant risk of errors, and the citizenship questions it raised, could have been timed to a period well clear of the electoral cycle. The logic that animates the observation — that citizenship determinations require careful process and timely resolution — applies with equal force to the decision of when to conduct an exercise that triggers them at scale.

What This Tells Us About Fourth Branch Design

Taken together, the SIR episode and the broader legal landscape of the ECI offer a valuable case study for the understanding of fourth branch institutions.

The first lesson is that competence alone is not enough. The ECI is, by most accounts, a technically capable institution. It has administered the world’s largest democratic exercise with considerable logistical sophistication. But, as Khaitan observes, a guarantor institution with strong expertise can still fail if it lacks adequate independence or accountability. Conversely, as Bhat shows, technical capacity does not substitute for institutional integrity. An institution that is perceived as insufficiently independent and that operates without robust accountability mechanisms will find its competence contested and its legitimacy eroded, particularly in periods of single-party dominance when the political environment is least hospitable to the constraints that guarantor institutions are meant to impose.

The second lesson is that independence and accountability are not in tension. They rather point in different directions. There is a tendency in constitutional design to treat these values as necessarily trading off. The more independent an institution, the less accountable it can be, and vice versa. Khaitan’s framework and Bhat’s application of it to the ECI both challenge this. Independence and accountability address different relationships: a guarantor institution needs independence from those who would capture or frustrate it, and accountability to those who have an interest in the norms it is meant to uphold. These are different groups, and a well-designed institution can achieve both. The ECI’s problem is not that it is too independent. If anything, its independence has proven insecure. The problem is that independence and accountability have each been under-designed, while power has been over-delegated.

The third lesson concerns the compounding role of courts. As Bhat’s analysis demonstrates, the Indian Supreme Court has been a significant actor in shaping the ECI’s constitutional status, including expanding its powers through the jurisprudence of deference while failing to develop corresponding accountability norms. The SIR judgment continues this pattern. Its proportionality analysis is methodologically sound. But it resolves the legality of a completed exercise without addressing the structural conditions, including the appointment regime, the parliamentary oversight deficit, and the absence of operational accountability frameworks, that made the exercise politically contestable in the first place. When courts defer to institutional expertise without requiring transparency or reason-giving, they become part of the accountability problem rather than part of the solution.

The SIR judgment, read alongside the scholarship on fourth branch institutions, is a reminder that the work around the development of sound fourth branch institutions remains very much unfinished in India. The costs of that incompleteness are now being borne by millions of voters.