Powers of the CEC | Day 1: SC seeks ECI’s response on plea
Challenge to powers of the Chief Election CommissionerJudges: Surya Kant CJI, Joymalya Bagchi J, V. Mohana J
Today, the Supreme Court issued notice on petitions challenging the functioning of the Election Commission of India (ECI), including allegations that Chief Election Commissioner (CEC) Gyanesh Kumar took decisions without the concurrence of the other two Election Commissioners.
A Bench of Chief Justice Surya Kant and Justices Joymalya Bagchi and V. Mohana tagged the petition with a separate challenge alleging that 14 decisions concerning the electoral process had been taken unilaterally by Kumar.
The petition, argued by Senior Advocate Menaka Guruswamy, raises questions about decision-making within the three-member ECI. The petition argues that the revision of electoral rolls and changes to Form 6 are examples of a breakdown in the ECI’s functioning.
A separate petition, argued by Senior Advocate Vikas Singh, sought Kumar’s immediate suspension, arguing that decisions relating to the Special Intensive Revision (SIR) could not continue while the challenge was pending.
Singh: “Our country is burning today”
Singh sought the immediate suspension of Kumar, arguing that his actions had undermined the electoral process and the functioning of the ECI. “Our democracy is so vibrant. CEC Gyanesh Kumar’s acts threatens the very nature of democracy,” he submitted.
He accused Kumar of repeatedly going beyond the statutory framework while assuring the Supreme Court that the ECI only took unanimous decisions. Singh referred to reports that the other two Election Commissioners, Sukhbir Singh Sandhu and Vivek Joshi, raised objections to several decisions. The news was first broken by the Indian Express which stated that both Sandhu and Joshi had formally objected to decisions taken by the ECI—14 times in 10 months.
CJI Surya Kant said that the Court would first need to verify the accuracy of the reports. To this, Singh responded that the ECI’s press release had not denied any claims raised in the newspaper reports. The Bench said it would seek the ECI’s response and examine whether the decisions had been taken unanimously or by majority, as contemplated under the framework.
The Court did not grant Singh’s request for an interim suspension of Kumar. It issued notice to the ECI, Kumar and the other two Election Commissioners.
Guruswamy: Free and fair elections do not exist today in the country
Guruswamy focused on the changes to Form 6 to question the ECI’s functioning. The statutory form is used for inclusion in the electoral rolls under the Registration of Electors Rules, 1960. In Delhi, she said, two additional conditions had been introduced, including one requiring applicants to establish their inclusion in the electoral roll after the previous SIR. Since Form 6 is prescribed in the Schedule to the Rules, she argued, it could not be altered without an amendment to the Rules. The CJI clarified, “No modified Form 6 has been approved by us”.
The scale of the SIR, Guruswamy said, made the question more pressing. The exercise covered 30 per cent of the electorate in Delhi and 25 per cent in West Bengal, where around 16 lakh appeals were pending before the appellate tribunal. “Those persons have already been excluded from one election cycle. Now there is another election cycle,” she said.
The Court shifted its attention to the prayers raised in the petition. CJI Surya Kant asked: “Have you seen your prayers?” Guruswamy said she stood by each of them, asking “Where is the infirmity in those prayers?”She argued that the franchise rights of voters were under threat and that the CEC’s functioning was “biased, to say the least”. CJI Surya Kant replied, “We also do our homework. We also know the case.”
Guruswamy said Delhi was only an illustration. The petition, she maintained, was not state-specific but concerned the national functioning of the CEC and the Election Commissioners, the institution of the ECI. She questioned whether the conduct alleged in the petition could be defended as the discharge of official duty. “What is the sanction for this kind of biased conduct? Is this discharge of official duty?” she said.
“We have grown up with free and fair elections in this country. They do not exist today,” Guruswamy said.