Supreme Court Asks The Election Commission To Explain How Its Decisions Were Taken
India's Supreme Court on Monday asked the Election Commission, the central government, the Chief Election Commissioner and the two other Election Commissioners to respond within a week to petitions arguing that decisions belonging to the Commission as a body have been taken by its chairman alone.
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The petitions turn on a distinction that is ordinarily academic. Article 324 of the Constitution vests the superintendence and control of elections in the Election Commission, a body that currently has three members. The Chief Election Commissioner chairs it but, the petitioners argue, holds no separate authority of his own. Under the law governing the Commission, business is to be transacted unanimously so far as possible, and where the members differ, by majority.
The first petition, brought by Rakesh Kumar Singh of Patna and argued by senior advocate Vikas Singh, asks the court to require the Chief Election Commissioner, Gyanesh Kumar, to show by what authority he has acted as though entitled to exercise that collective power. It also seeks a declaration that the Special Intensive Revision of electoral rolls, and everything done under it, was void from the outset.
Counsel pressed for an interim order suspending Kumar and leaving the Commission's business to the other two members, Sukhbir Singh Sandhu and Vivek Joshi. He argued that a flawed electoral roll cannot be repaired after the event. "Your Lordships can't annul an election that has already happened," he said, warning that without interim relief the country would burn.
The bench was not persuaded that it could act on what was before it.
"News report may be 100 per cent correct, it may be partially correct, it may be partially incorrect," the Chief Justice said. "We cannot really pass an order today on that basis but we'll definitely like to have their response."
Justice Bagchi asked whether the court could conclude without hearing the other side that every decision in question had been taken unilaterally and said that if the records showed decisions taken neither unanimously nor by majority, those decisions would be struck down as beyond the Commission's powers.
Much of the argument concerned Section 16 of the 2023 law on the Commission's appointments and service conditions, which bars any court from entertaining civil or criminal proceedings against a serving or former Election Commissioner for anything done in the discharge of official duty. Counsel said the provision had no equivalent in the earlier statute. Justice Bagchi observed that judges themselves do not enjoy protection of that kind.
The second petition, by the Delhi lawyer Shailendra Mani Tripathi and argued by senior advocate Menaka Guruswamy, seeks an inquiry commission or a special investigation team headed by a retired Supreme Court judge, together with an audit of the Commission's databases and an examination of how names came to be removed from the rolls on the scale reported. Guruswamy told the court that in Delhi the exercise had affected 30 per cent of the electorate and in West Bengal 25 per cent, and that 16 lakh appeals remained pending before the tribunal the court itself had supervised.
On a change made to Form 6, the application form for new voters, the Chief Justice was direct. Any modified version, he said, had not been approved by the court, and when the record was produced the bench would want to see who had modified what.
The petitions follow an investigative report in The Indian Express that Sandhu and Joshi had objected on the record at least 14 times over ten months to decisions and orders on the roll revision, saying some had been issued without their knowledge. The Commission has said that differing views are a normal part of deliberation in any institution and that its orders carry full legal sanction and follow established procedure.