Manas Dasgupta
NEW DELHI, Sept 25: A Public Interest Litigation (PIL) moved in the Supreme Court on Friday has put the Chief Election Commissioner (CEC) Gyanesh Kumar at the centre of a fresh controversy over his functioning as it sought to subject him to police investigation, evidence gathering and regular trial like an “ordinary accused” for committing forgery.
The petition has sought criminal prosecution of the CEC, alleging violations of statutory duties in the handling of the voter-list revision exercise. The plea, filed under Article 32 of the Constitution by advocate Shailendra Mani Tripathi, represented by advocate Chand Qureshi, also challenges a series of decisions, guidelines and software changes allegedly introduced without the concurrence of the other two Election Commissioners.
“Intentionally manipulating records, committing forgery, or subverting the constitutional electoral process in the course of discharging official duties can under no circumstances be treated as an integral part of those duties,” the petition said.
The plea said the allegations raised against Mr Kumar in an investigative media report did not show any reasonable nexus with his official functions and responsibilities, and included tampering with the electoral roll. The allegations constitute a cognisable offence under Section 32 of the Representation of the People Act, 1950 as well as the Bharatiya Nyaya Sanhita (BNS).
It further seeks to have all those decisions declared illegal and demands the reinstatement of the original ‘Form 6’. The petition also demanded an investigation by a Special Investigation Team (SIT) into how the names of 13 crore voters were removed from the electoral rolls during the ongoing Special Intensive Revision (SIR). Besides Gyanesh Kumar, the PIL also seeks the prosecution of Senior Deputy Election Commissioner Maneesh Garg, and Director General (IT) Seema Khanna and other officials who may be found responsible for the alleged dereliction of duty under the Representation of the People (RP) Act.
Mr Tripathi submitted that Mr Kumar, in light of the allegations, would be divested of any statutory or constitutional immunity; the Chief Election Commissioner (CEC) remains directly accountable under the law—subject to police investigation, evidence gathering, and regular trial proceedings as an ordinary accused.
“Once the logical and legal coherence between the act and the official obligation ceases to exist, the doctrine of ‘reasonable nexus’ breaks down completely. In the absence of this legal nexus, the statutory protection available under Section 16 of the Chief Election Commissioner and other Election Commissioners Act, 2023 becomes entirely ineffective,” the petition contended.
The plea said the issue touched upon the very foundation of India’s constitutional democracy, free and fair elections, and institutional independence of the Election Commission of India.
The petition said the “illegal” acts included the unilateral alteration of the statutory form 6 to introduce a mandatory ancestral condition or ‘last SIR linkage’ for first-time young voters without legislative authority or amendment of the Registration of Electors Rules, 1960; disenfranchisement due to software failures; unauthorised subversion in West Bengal by filing over 16.10 lakh unauthorised appeals in the name of the EC to purge citizens restored by 700 judicial officers without the knowledge, authorisation, or sanction of the other two Election Commissioners or the Chief Electoral Officer of West Bengal, etc.
Mr Tripathi said the status of a public servant by itself did not confer legal legitimacy or protection upon malicious or criminal conduct. “Intentionally manipulating records, committing forgery, or subverting the constitutional electoral process in the course of discharging official duties can under no circumstances be treated as an integral part of those duties,” the petition said.
From a constitutional standpoint, the petition argued that the CEC enjoyed no personal immunity from criminal prosecution. Under Article 361 of the Constitution, absolute personal immunity from criminal proceedings and arrest during their tenure is conferred solely upon the President and Governors. “Article 324 merely grants the CEC security of tenure (subject to removal), not immunity from personal criminal liability… The Election Commission operates subject to the rule of law and is not a law unto itself. Additionally, Section 16 of the 2023 Act contains no explicit bar against police investigation or arrest,” the petition submitted.
The petition said that even otherwise it was an established tenet of jurisprudence that “fraud unravels everything.” “When voter lists are wilfully manipulated in direct contravention of the constitutional mandate to conduct free and fair elections, such conduct falls outside the purported discharge of duty, rendering the legal shield of Section 16 inapplicable,” the petition contended.
The petitioner has urged the top court to declare such actions unconstitutional and void. The petitioner has asked the top court to direct the competent authority to register complaints and initiate prosecution under Section 32 of the Representation of the People Act, 1950.
One of the key issues raised in the petition concerns changes made to Form 6, the statutory form used by eligible citizens to apply for inclusion in the electoral roll. The Election Commission’s voter services portal currently provides Form 6 for new voter registration and also hosts services related to the 2026 SIR exercise.
According to the petition, Election Commissioner Vivek Joshi objected to the alteration of Form 6 in May 2026, arguing that the statutory form could not be changed without a corresponding amendment to the Registration of Electors Rules, 1960. Election Commissioner Sukhbir Singh Sandhu subsequently concurred with the objection.
The petition alleges that despite these objections, Form 6 on the ECINet portal was modified to seek information about whether the applicant or their relatives had appeared in an earlier SIR electoral roll. The plea relies on a subsequent observation attributed to Sandhu, who described the alteration as “unauthorised and illegal.”
The petitioner has also challenged the manner in which certain decisions were allegedly taken within the Election Commission. The plea seeks a declaration that decisions, directives, guidelines and software modifications initiated, approved or implemented under Gyanesh Kumar without the concurrence of the full Commission, or contrary to the majority view of the Election Commissioners, are unconstitutional, ultra vires and void ab initio.
The petitioner has relied on Section 18 of the Chief Election Commissioner and Other Election Commissioners Act, 2023. According to the plea, the provision requires a matter to be decided according to the majority opinion where the CEC and the other Election Commissioners differ.
The petitioner has also asked for an independent investigation into the functioning of the electoral-roll databases used during the SIR exercise. For this purpose, the plea seeks the constitution of a Judicial Inquiry Commission or Special Investigation Team (SIT) headed by a retired Supreme Court judge and assisted by cybersecurity and information technology experts. The petition claims that 13 crore names were deleted across 30 States and Union Territories during the SIR exercise and seeks an investigation into how the deletions took place.
Meanwhile, a petition was also filed in the Bombay High Court’s Kolhapur Bench seeking the court to quash 14 orders of the CEC and changes in the ECI rules, to stop the SIR process in Maharashtra, restore names removed from voter lists, and postpone Assembly elections in States where the process is still on.