There is a deeper constitutional question that no judgment has yet fully confronted: who bears the burden of proving citizenship in a democracy – the state or the citizen?

India’s legal system is extraordinarily efficient at answering technical questions: which rule applies, which document is valid, which authority has jurisdiction. But when it comes to first-order constitutional questions – about power, accountability and the moral architecture of the state, it often falls silent.

This silence is not accidental. It’s structural.

Our system is designed to resolve disputes, not to interrogate design. It prefers procedure over philosophy, compliance over consequence. The result is a legal culture that constantly answers how something is done, but rarely asks whether it should exist in that form at all.

Let’s take special intensive revision (SIR) as an example. 

The Supreme Court is currently hearing a batch of petitions challenging the SIR of electoral rolls being conducted by the Election Commission of India (ECI) ahead of Assembly elections in several states. 

In Association for Democratic Reforms v. Election Commission of India (W.P. (C) No. 640), 2025, a bench led by Chief Justice of India Surya Kant and Justice Joymalya Bagchi has issued interim directions, including to publish the names of electors flagged for “logical discrepancies” and to accept Aadhaar and EPIC as valid identity documents for SIR. These developments show that the Court recognises ‘procedural concerns’ in SIR. That much is beyond question.

However, there is a deeper constitutional question that no judgment has yet fully confronted: who bears the burden of proving citizenship in a democracy – the state or the citizen?

That question stands at the very foundation of our constitutional order. It has not yet been asked with the right force, let alone answered.

What the court has reviewed and what it has not

In ADR v. ECI, the Supreme Court did not examine the constitutional significance of placing the burden of proof on citizens to establish their right to remain on the electoral roll. The orders so far have focused on procedural protections – adequate documentation, disclosure of names deleted, and transparency in the verification process.  

This makes sense at one level. The top court is right to insist that:

• voters whose names are deleted should know why that happened,
• identity documents commonly held by citizens should be accepted, and
• transparency must be maximised.

These are necessary safeguards. But they are not sufficient to address the constitutional harm lurking beneath SIR.  Because SIR’s biggest question is not how the roll is amended. It’s who has to show they have the right to be on it at all. 

Citizenship is a constitutional status, not a continuous evidentiary performance. 

Under Article 326 of the constitution, the right to vote is guaranteed to every citizen aged 18 and above. The idea that such a status must be constantly demonstrated, frequently through documentation that a large number of citizens lack, flips an elementary constitutional condition on its head. 

When the state moves into demanding citizens to document their citizenship in detail or face removal from the electoral roll, it effectively transfers the burden of proof from the state to the citizen. No SIR-related Supreme Court order has yet grappled with this meta constitutional question. 

The Assam example and the shadow of NRC

The situation in Assam adds urgency to this concern.

Unlike other states, Assam is not currently covered by the nationwide SIR because of the ongoing National Register of Citizens (NRC) exercise, which the Supreme Court supervised for several years. In Assam, the electoral roll revision process remains distinct, with only a limited special revision being conducted ahead of the 2026 Assembly polls.  

The connection between NRC and electoral roll verification is not merely administrative. NRC in Assam was itself a massive proof-burden exercise, where individuals had to substantiate their citizenship through documents going back decades. Many were unable to, not for lack of loyalty to the republic, but because of documentary poverty. This inverted the usual presumption that one is a citizen until proven otherwise, and instead treated citizenship as suspect until proven with paper.

If anything, the top court’s supervision of NRC should make it particularly sensitive to the constitutional danger of burden reversal. Yet, in the ADR case, the court has not paused to name or analyse the spectre of NRC as a constitutional cautionary tale for SIR.

Why this matters, beyond procedure

This is not mere academic nit-picking.

The concern is concrete – millions of citizens live without documents like birth certificates or Aadhaar. Many migrate seasonally for work, far from their place of origin. Women, the poor and marginalised communities are disproportionately undocumented in ways that have nothing to do with loyalty or eligibility.

SIR, as currently practised, can end up excluding voters simply because they lack documentary proof at the moment of verification. This is a structural harm that goes beyond errors and omissions, it impacts the very right to be counted as a citizen.

Yet, the court has so far confined itself to procedural fixes – better documentation lists, transparency, and the acceptance of Aadhaar as proof.

None of these orders ask the constitutional question: must citizens, by virtue of being citizens, prove that they are citizens every few years as a condition for inclusion on the roll?

That question cuts to the heart of equality (Article 14), dignity (Article 21), and the franchise itself (Article 326).

Why the Supreme Court’s silence matters

Judicial review is a powerful tool not just to iron out procedural rough edges, but to check structural distortions of power. Contrast the current approach with what happened in the electoral bonds case (Association for Democratic Reforms v. Union of India, 2024).

There, the Supreme Court held the scheme unconstitutional because it undermined transparency and the democratic process. Even so, it did not address the consequences already caused by the scheme.

So if all the parties had in fact received large sums of money through the electoral bonds scheme, declared unconstitutional by the Supreme Court, why did the court not follow this up with an order that such money ought to be returned. It’s like the court declared that Mr. A has committed theft but that he is allowed to keep the proceeds of that theft. 

In the electoral bonds case, it was even more important because all records showed that the single party which received an incommensurate donation was the Bharatiya Janata Party. The disproportionality was huge. As per the Association for Democratic Reforms, “the total donations declared by BJP are more than three times the total donations declared by all other national parties.” 

During a six month period, more than 52% of BJP’s total donations came from electoral bonds worth Rs. 5,271.97 crores. Clearly that changes the level playing field in the election system altogether, giving BJP a clear edge over everyone else. 

So why then did the Supreme Court not order that this illegally received money be returned or something be done with it. The meta question of money in politics was completely ignored by the Supreme Court.  

In both these instances, SIR and Electoral Bonds, the top court dealt with the form of the problem – procedure, documentation or legality – without interrogating the constitutional logic that justifies or condemns the underlying practice in the first place.

Failure to address the meta questions

What we are seeing in the SIR case is part of a larger malady. In the criminal justice system, undertrials spend years in prison only to be acquitted later. The system calls this delay. The constitution calls ‘liberty’ fundamental. Yet there is no serious institutional mechanism to ask who bears responsibility for stolen time.

Media trials destroy reputations long before courts speak. We invoke free speech and move on, without asking why parallel systems of punishment are allowed to flourish.

Even within courtrooms, deeper questions remain unasked.

Why does access to judicial time correlate so strongly with wealth? Why do some cases stretch over days while others are dismissed in minutes? Why do judges exercise enormous administrative power without structured accountability or continuity? 

Judges have no experience or training in handling administration – so why shouldn’t there be a separate administrative wing deciding on who hears matters, and when and for how much time? Why is there no CEO of the Supreme Court, so that the needle of the justice system moves faster? We have repeatedly seen the Supreme Court procedure/rules being set by one Chief Justice of India, only to be changed by the next CJI after a few months. We have even seen some judges refuse to follow the process set by the CJI – setting fixed time for arguments in the Supreme Court is the recent case in point. 

These are not accusations. They are design questions. But design questions are the ones institutions most resist because they expose not individual failures, but systemic choices.

The absence of meta questioning serves a purpose. A system that keeps citizens occupied with technicalities prevents them from seeing the larger picture. Procedure becomes a substitute for justice, compliance becomes a substitute for legitimacy. And yet, constitutional law was never meant to be a technical toolkit alone. It was meant to be a moral framework that disciplines power.

So, can we ask and answer some meta questions, please, my lords?