An Independent Commission Without A Mandate? The Constitutional Questions Behind The SIR Inquiry

Constituted by the Lawyers’ Association for Constitution (LAFC), the five-member panel chaired by former Supreme Court judge Justice Madan B. Lokur proposes to examine the legality, methodology and impact of SIR through public hearings, empirical research and legal analysis. Its membership includes other former judges of the Supreme Court and High Courts. Its stated objectives may sound defensible. Yet, the invocation of judicial stature, the use of the word ‘commission’, and the promise of nationwide hearings demand scrutiny of their own.

The issue is not whether former judges retain the right to participate in public life after retirement. They unquestionably do. It is whether an unelected, privately constituted body can conduct a politically consequential inquiry without sufficiently clarifying its legal status, evidentiary standards, financial arrangements and institutional independence.

A Commission Constituted by Whom?

The first question is deceptively simple: who constituted this commission? The answer, according to the publicly reported announcement, is LAFC, a lawyers’ association. The distinction matters because the Constitution does not recognise this body as a constitutional commission, nor has Parliament established it through legislation. It is not a commission appointed by the President, a body constituted by the ECI, or a judicial forum created by an order of a competent court.

There is, of course, nothing inherently unlawful about lawyers, academics or civil-society organisations establishing a private fact-finding initiative. Freedom of expression and association protects their ability to investigate public issues, criticise government institutions and publish their conclusions. The absence of statutory recognition does not, by itself, invalidate their exercise.

But the problem begins when a privately constituted initiative adopts the nomenclature of an ‘Independent Commission of Former Judges’ and proposes to examine the constitutional and statutory validity of an exercise undertaken by a constitutional authority. The word ‘commission’ is not, by itself, proof of statutory status. Nevertheless, in public discourse, it carries institutional connotations of authority, impartial investigation and procedural legitimacy. When the members are former constitutional judges, that impression becomes even stronger.

Will the commission publish its constituting resolution? What precisely are its terms of reference? Who has defined its jurisdiction? What rules govern the admission, verification and preservation of evidence? Will the ECI have an opportunity to respond to allegations before findings are published?

These are not technical distractions. They are elementary questions of institutional accountability. An institution cannot acquire constitutional authority merely by adopting constitutional-sounding terminology, just as a report cannot acquire the status of a judicial determination merely because former judges have authored it.

The Constitutional Question Has Already Been Adjudicated

The commission’s proposed inquiry must also be situated within the existing legal framework. Article 324 vests the ECI with constitutional responsibility over electoral administration. Section 21(3) of the Representation of the People Act, 1950, read with the relevant statutory framework, provides the legal context for intensive revision of electoral rolls. The exercise must, of course, remain consistent with applicable legislation, the Registration of Electors Rules, 1960, and constitutional guarantees. The Supreme Court’s judgment in Association for Democratic Reforms v. Election Commission of India, 2026 INSC 564, delivered on 27 May 2026, upheld the SIR exercise challenged before it. The Court accepted the ECI’s authority to conduct the revision and found the exercise constitutionally permissible and proportionate, with procedural safeguards against arbitrary exclusion.

This does not mean that every subsequent administrative decision is immune from challenge. Nor does the judgment establish that no eligible voter can suffer wrongful exclusion. Individual cases, procedural violations and failures in implementation remain legitimate subjects of investigation and, where appropriate, judicial review.

However, the distinction between examining implementation and purporting to reopen an adjudicated constitutional question must remain clear. If the commission investigates whether eligible voters received notice, whether claims were properly considered, or whether names were wrongly deleted, it may contribute useful evidence to public debate. If it proceeds as though its own conclusions can displace the Supreme Court’s determination of the legal authority to conduct SIR, it risks confusing political advocacy with constitutional adjudication.

The appropriate question is not whether the ECI is beyond criticism. It is not. The question is whether the proposed inquiry will respect the existing legal framework while testing the actual implementation of safeguards.

Public Hearings: Evidence or Public Mobilisation?

The proposed nationwide public hearings present another difficulty. Public hearings can expose administrative failures that official statistics overlook. A voter who never received notice, could not obtain the required documents, or was denied a meaningful opportunity to respond may have a compelling grievance.

But a public hearing is not a substitute for a systematic investigation.

Who will be invited to testify? How will cases be selected? Will testimony be independently verified against electoral records? Will the commission distinguish between an allegation, a documented procedural irregularity and an established case of wrongful exclusion?

Most importantly, will it examine deletions that were justified as well as those that were not? a deletion from a draft electoral roll does not automatically establish disenfranchisement. Entries may concern deceased persons, duplicate registrations, permanent migration or other legitimate grounds for removal. The relevant question is how many eligible voters were wrongly excluded, not simply how many names disappeared. A panel that records grievances without independently testing them risks selection bias. Individuals who have experienced difficulties and possess the resources or political connections to approach a hearing are more likely to be represented than those who have experienced no difficulty or cannot participate.

The danger is not that public hearings necessarily constitute political mobilisation. It is that an exercise presented as independent fact-finding could generate a public narrative before establishing the factual basis for its conclusions. What safeguards will prevent unverified allegations from being presented as established findings? Will the commission publish its sampling methodology, verification criteria and underlying data? Will the ECI and state Chief Electoral Officers be invited to provide records and respond to specific allegations?

Until these questions are answered, the commission’s proposed methodology remains an important test of its credibility.

Independence Must Be Demonstrated, Not Announced

The commission’s location adds another dimension to the debate. Its first public hearing is scheduled at Jawahar Bhawan in New Delhi. Publicly available records identify Jawahar Bhawan as the address of the Rajiv Gandhi Foundation and the Rajiv Gandhi Institute for Contemporary Studies. The foundation’s published material identifies Sonia Gandhi as its chairperson and Rahul Gandhi among its trustees. These facts warrant transparency about the premises, the arrangements under which the commission is operating and the institutional relationships, if any, between the organisers and the venue’s management.

They do not, by themselves, establish that the commission is politically controlled or that its members lack impartiality. A venue’s associations cannot substitute for evidence about the conduct of an inquiry. Nevertheless, the choice of location is not irrelevant when a body claims independence in a highly polarised political controversy. If an inquiry is intended to command public confidence across political divides, its organisers should anticipate reasonable questions about the circumstances in which it operates. Who provided the premises? Are they being provided free of charge, at a commercial rate or under another arrangement? Who bears the administrative costs of the hearings? Are any political organisations, advocacy groups or interested parties funding the exercise? These questions should be answered through disclosure, not dismissed as insinuations.

The same standard applies to the commission’s members and legal advisers. Have any disclosed financial, organisational or professional relationships that could reasonably be perceived as relevant to the inquiry? What safeguards exist to ensure that those advising the commission do not determine the outcome before the evidence is examined?

Impartiality is not established merely by the personal reputation of those involved. It is strengthened by procedures that allow the public to assess the independence of the institution itself.

The Unanswered Question of Funding and Accountability

An inquiry of national scope requires time, research, travel, administrative support and legal expertise. These activities have costs. Yet the public deserves to know who is financing them. Is the exercise entirely pro bono? Are the judges, researchers and lawyers contributing their time without remuneration? If remuneration is being paid, by whom? Are donations or institutional grants involved? Will the commission disclose its expenditure and sources of financial support?

There is nothing improper about a private organisation funding legitimate public-interest research. Nor does accepting financial support necessarily compromise independence. The concern arises when funding arrangements remain undisclosed while the resulting report is presented as an authoritative assessment of a constitutional institution.

The same uncertainty surrounds the report’s intended destination. Will it be submitted to the Supreme Court, Parliament, the ECI, political organisations or the public alone? Is the commission preparing an evidentiary report, a set of legal recommendations, a political statement or some combination of the three?

A credible inquiry should answer these questions before its conclusions acquire a life of their own in public debate.

The Authority of Retired Judges and the Risk of Confusion

The participation of retired judges deserves particular attention because judicial office carries public prestige. The use of the prefix ‘Justice’ before their names is not inherently improper. Former judges are commonly identified by the titles associated with their judicial careers. There is no basis to suggest that using the title, without more, is unlawful.

But context matters. When former judges sit on a privately constituted panel styled as an independent commission, their judicial titles can lead sections of the public to mistake the exercise for an officially authorised inquiry or a quasi-judicial proceeding. The distinction should be made unmistakably clear in every announcement, hearing notice and published report: the members are participating in a private fact-finding initiative; they are not exercising the jurisdiction of a court.

The panel cannot, merely by virtue of its members’ former offices, compel the ECI to act, invalidate electoral-roll revisions, restore deleted names through binding directions or override a judgment of the Supreme Court. Its conclusions may be debated, cited in litigation where legally relevant, or considered in policy discussions. Their evidentiary value will depend on the quality of the underlying material and the manner in which it was collected and verified.

Former judicial office deserves respect. It does not confer perpetual judicial jurisdiction. India needs evidence, not competing claims of institutional legitimacy. None of this requires the public to accept every action of the ECI uncritically.

The right to vote in elections is central to representative democracy. Article 326 establishes the constitutional framework of adult suffrage, while Articles 14 and 21 inform broader constitutional questions of equality and procedural fairness where applicable. The statutory framework governing electoral registration must be administered lawfully, and eligible voters must have meaningful opportunities to challenge erroneous decisions. If SIR has resulted in wrongful exclusions, those cases must be identified, documented and remedied through the legally available mechanisms. A constitutional institution does not become immune from scrutiny merely because its authority has been upheld in a particular case.

But neither does scrutiny become credible merely because it is undertaken by a group of distinguished individuals.

India does not need competing institutions claiming moral supremacy over one another. It needs reliable electoral data, transparent procedures, accessible remedies and findings that can withstand independent verification. The test of independence is whether the inquiry is willing to reach conclusions that may be inconvenient to its own organisers.

Constitutional accountability requires scrutiny of the Election Commission. It also requires scrutiny of those who claim to scrutinise it. Neither judicial prestige nor the language of independence should exempt an institution from answering the most basic question of all: on what evidence, under what procedure, and with what authority does it speak?