on the Supreme Court’s Bihar Election Rolls Ruling – Constitutional Law and Philosophy

The use of ambiguity is a staple feature in many forms of art. In Romeo and Juliet, Mercutio, after being stabbed, says “ask for me tomorrow, and you shall find me a grave man.” Shakespeare deployed ambiguity to great effect, in order to create “a constant but fluctuating separation between the reader and text, the literal and figurative, and the expressed and implied.” Poetry – from Milton’s “fruit of the forbidden tree” to Elizabeth Bishop’s “the ties … too close together” has always utilised ambiguity to proliferate meaning. More recently, abstract expressionist art thrived on ambiguity, taking it to be “its own reward.”

The Supreme Court’s 10th July “order” on the Bihar election rolls, authored by Dhulia and Bagchi JJ., is either a fragment of Shakespearean drama or a poem in the tradition of Bishop – or perhaps a piece of abstract art. It must be one of these three things, because we know what it is certainly not: a judicial order delivered by a constitutional court.

The context of yesterday’s hearing has been discussed in some detail in Vasudev’s blog post yesterday, which was published before the written order was uploaded to the Supreme Court’s website. The case was brought to Court because the Election Commission’s decision to conduct a “special intensive revision” of Bihar’s electoral rolls in the run-up to the state election, which required all voters who had been enrolled after 2003 to “re-enroll” and demonstrate their eligibility to vote within a period of one month, risked causing widespread disenfranchisement in the state (for detailed analyses, see here, here, here, and here). Apart from issues around jurisdiction and disenfranchisement, there was also the Supreme Court’s own prior precedent of Lal Babu Hussein, which made it clear that a generalised removal of individuals from the electoral rolls, and requiring them to prove their eligibility in order to be put back on those rolls, was unconstitutional.

There were two clear and defining features of the case before the Court: its seriousness (mass disenfranchisement goes to the very heart of the democratic process, and of democratic legitimacy) and its urgency (the draft electoral rolls are to be published on August 1). Given its legal assessment of the matter, there were also a range of constitutional remedies open to the Court, which would protect voting and citizenship rights: from an interim stay of the process (given the proximity of the state elections) to more modulated orders (for example, stipulating that those individuals who had been on the Special Summary Roll that had been finalised as recently as January 2025 could not be mass-removed from it). At the very least, one would expect that a constitutional court, when faced with such a case, would accord it the seriousness that it deserves, and write a reasoned order explaining and justifying the position that it took.

Indeed, on 10 July, the Court had all the tools to do so: the case was argued over the course of four hours (enough time for a final hearing, before most courts), with both sides presenting their arguments in some detail. Informal live records of the oral hearing also show that the bench put detailed questions to both sets of counsel. Unfortunately, however, the order that followed – first, orally dictated in court, and subsequently published a few hours later – reflected none of this. Rather, it followed familiar pattern that we have come to expect from the Supreme Court in high-stakes constitutional cases: a pattern of ambiguity, evasion, and deferral (see here). After a brief recitation of both sides’ cases, without any consideration of the legal arguments, the Court says:

“… in our prima facie opinion, it would be in the interest of justice if the Election Commission of India also considers the following three documents as well (apart from the 11 documents mentioned in order dated 24.06.2025), i.e., A) Aadhar Card; B) Electors Photo Identify Card (EPIC), which is issued by Election Commission of India itself, and C) the Ration Card.”

This sentence is the piece of abstract art that headlines this post: it is so deftly worded in order to avoid the burden of clarity and certainty, that it reminds me of that famous example of the “triple pun”: “A rancher who was ready to retire gave the operation of his ranch over to his two boys. He renamed it “Focus,” because it was where the sons raise meat.“* Well, here the Supreme Court seems to be communicating a triple meaning: is the Election Commission (a) bound to accept these three documents if presented to it, or (b) “consider” them on a case to case basis, or (c) “consider” whether to include one or two or all of these documents as proofs of citizenship in the SIR process? Is this even a judicial order, or is the Court engaging in a philosophical disquisition of what the interests of justice might require? Would it have killed the Court to write in legal language: “We direct the Election Commission to…” or “We declare that these three documents…”?

Ambiguity plays a vital role in art, where proliferating meanings and open endings can enrich the process of interpretation. But in a case of a judicial order, where the voting rights of masses of individuals turn upon words, ambiguity is the most profound exemplar of judicial abdication, of a court failing to do its job. And ambiguity is not neutral: it favours the party that holds power, the party that can shape ambiguity to its own ends – in this case, the Election Commission.

In the 10 July order, this ambiguity is coupled with deferral: the Court fixes the next date of hearing eighteen days later, on 28 July, and four days before the publication of the draft roll: by which time the process will be more or less complete, and will allow for a fait accompli to be presented to the Court as a constitutional argument for non-interference – a story that we have seen play out many times in the past.

And finally, evasion completes the trinity of ambiguity, deferral and evasion: the Court gives no reason for its observations on these three documents (leading, once again, to civil rights becoming the gift of judicial patronage and negotiations rather than enforceable rights, as I’ve previously written), and does not engage with any of the other issues raised in the petitions (what, one might then ask, was this four-hour hearing for?). In short, the Court does not do its primary job, which is to pass a reasoned, judicial order on an important and urgent constitutional case brought before it. One may ask: if the Court is unwilling or unable to pass a reasoned order in this case – which goes to the heart of the democratic process – when will it ever do so?

Perhaps, in the absence of that, all that we are left to do is to admire what the Court does give us, on its own terms: no judicial order, but a piece of abstract art.

* The triple pun is the sons raise meat/the sun’s rays meet.