Did not clear Form 6 change... can annul unilateral decisions: Supreme Court sends notice to Election Commission

The Supreme Court on Monday issued notice to the Centre and the Election Commission of India (ECI) on a petition accusing Chief Election Commissioner Gyanesh Kumar of acting in violation of the law that governs his terms of office by functioning in a unilateral manner and seeking his removal.

The notice issued by a three-judge bench, presided by Chief Justice of India Surya Kant, was also directed at the CEC, Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi, Deputy Election Commissioner Maneesh Garg and ECI Director General (Information Technology) Seema Khanna.

The petition, filed by Patna resident Rakesh Kumar Singh, is based on the findings of an investigation by The Indian Express published on September 23 that Sandhu and Joshi had objected on record 14 times in 10 months to steps taken by the Commission under the CEC -- from keeping them in the dark to adding new voters and deleting names.

The plea urged the bench, also comprising Justices Joymalya Bagchi and V Mohana, to seek the "complete original and primary records" relating to the matter from the Election Commission. It also prayed that the ongoing exercise be declared illegal.

Read | CJI says Supreme Court did not approve Form 6 changes: What the form is, why it matters

The CJI assured that the court would examine the records and ensure that any decision taken without unanimity will have to go. "We can always annul any decision," the CJI said.

Justice Bagchi said that after examining the records, if the court finds that some decisions were taken neither by unanimity nor by majority, "we will injunct those decisions...we will say these decisions are ultra vires...".

The bench, however, declined to pass any interim order to suspend CEC Kumar or direct that the poll body should take decisions unanimously till it finally decided the matter.

Appearing for the petitioner, Senior Advocate Vikas Singh said some interim directions are necessary. "I am wanting an interim order today to suspend the CEC immediately...Today there are elections happening...or divest him of the authority to act as CEC", he said.

Justice Bagchi, however, asked "who will conduct the election" in such a scenario. Singh responded that the two Election Commissioners can, and added that in the interim, the court should also restore the position of the ECI as it had made the CJI a member of the selection committee for CEC.

"We are dealing with a very grave situation today. A grave situation which can undermine the very basis of our democracy. Today, our democracy is vibrant and known all over the world because of the way we are able to conduct the elections. This election.. has been conducted for 76 years, with the ECI having a certain amount of respect," Singh said.

He said that while there have been earlier occasions where one or two decisions of the ECI may be questioned, "today we are having a situation where the very CEC as a constitutional body is acting in a manner which is completely contrary to the statute under which he is appointed."

Pressing for interim relief, Singh said: "...today Your Lordships will pass some orders. Otherwise this country will burn today... The elections were conducted with the ECI having some respect. But today we are having a situation where the CEC is acting in a manner which is completely contrary to the statutory framework. Your Lordships have to take some interim measures here. Because otherwise the very credibility of the electoral process is so undermined that every citizen of this country is feeling unsafe."

When the court expressed its disinclination to issue any order to suspend the CEC, Singh sought a direction that the ECI will decide things unanimously till the court hears the matter next.

Referring to The Indian Express investigation, Singh pointed out that the ECI had not denied the report. "There is a press release (on September 26) by the Election Commission, which has not denied the newspaper report. The press release is in the vaguest of language."

The CJI said: "(The) newspaper report may be 100 percent correct, it may be partially correct, it may be partially incorrect. We cannot really pass an order today on that basis. But we would definitely like to have their response. And then whatever correctional requirements are needed, will issue them."

When Singh insisted that the court pass an interim order directing that the ECI act unanimously till the next date of hearing, the CJI said: "...going by the law, they are expected to take firstly a decision by unanimity and if there is no unanimity, by majority. Now if there is a decision which is neither unanimous nor by majority, (then) that is subject matter (of challenge)...".

The CJI said, "There is a mandatory law. We will accept that they follow it. And if ultimately we find there are instances it has not been followed, you know the (consequences)."

Accusing the CEC of violating the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, the petition said: "If the power constitutionally vested in the Election Commission as a multi-member body can, in fact or in substance, be exercised by one office within it without the participation the Constitution and the 2023 Act... then decisions that determine who is on the electoral roll, and therefore who may vote, raise a serious constitutional question as to whether such decisions are being taken by the constitutional authority the Constitution created for that purpose."