Manas Dasgupta
NEW DELHI, Sept 29: The Supreme Court on Tuesday agreed to hear next week a petition that raised doubts over the decisions taken by the Election Commission of India (ECI) led by Chief Election Commissioner (CEC) Gyanesh Kumar.
The matter was mentioned before a bench of Chief Justice Surya Kant and Justices Joymalya Bagchi and V. Mohana. Senior advocate Vikas Singh, who mentioned the matter, told the bench that as per the statutory scheme, decisions of the multi-member Election Commission have to be unanimous or by majority. “The way the Election Commission is functioning, there is serious doubt over whether the decisions are unanimous,” he submitted.
The petition comes days after the media reported that Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi had recorded objections at least 14 times over the past 10 months to decisions and orders concerning the SIR of electoral rolls. The two commissioners were also reported to have stated that some of the decisions were taken without their knowledge or recommendation. The Election Commission, however, said the letters sent by Sandhu and Joshi to the Cabinet Secretary concerned an officer on deputation and were not related to policy or IT division matters.
The petition referred to alleged differences between CEC Kumar and Sandhu and Joshi, and the objections they raised. “Article 324(1) of the Constitution does not vest the superintendence, direction and control of elections in an individual Chief Election Commissioner. It vests those powers in a Commission,” said the plea.
Singh pointed out that Article 324(2) provides that the Election Commission comprises the Chief Election Commissioner and such number of other Election Commissioners as the President may determine from time to time. Article 324(3) further stipulates that, when other Election Commissioners are appointed, the Chief Election Commissioner shall serve as the Commission’s Chairman.
“The constitutional text therefore deliberately separates membership of the Commission from the chairmanship of the Commission, and separates the chairmanship of the Commission from the Commission’s power.” He said his grievance is not that Kumar exercised the CEC’s powers improperly, “but that he has… held out as entitled to exercise a power, the collective decision-making authority of the Commission under Article 324 and Section 18 of the 2023 Act [Chief Election Commissioner and Other Election Commissioners Act], to which Article 324(3) gives him no individual title, he being Chairman of the Commission and not the Commission itself.”
The plea urged the court to issue a quo warranto writ “calling upon” Kumar “to show under what authority he has acted, and continues to act, as though entitled individually to exercise the collective decision-making power vested by Article 324 of the Constitution in the Election Commission as a body, notwithstanding that Article 324(3) constitutes him only Chairman of the Commission and vests in him no individual title to the Commission’s collective authority.”
It requested the court to seek the “complete original and primary records relating to the matters” from the Commission “and enforce the constitutional and statutory principle that a power vested by Article 324 in the Election Commission as a constitutional body cannot be exercised, or represented to the public, the courts or the country as an act of the Commission, except in accordance with the constitutional and statutory framework governing the Commission, including Section 18 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.”
“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 require, 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.”
The plea also said if “upon examination of the primary record and other material” produced before the court, “it is found that” he has “exercised, or continues to exercise, such collective authority without a decision of the Commission taken in accordance with Section 18 of the 2023 Act,” such exercise of authority must be declared “to be without lawful title.”
It also sought a declaration that “ the powers vested under Article 324 of the Constitution re constitutionally required to be exercised by the Election Commission of India as a multi-member collegial body, in accordance with Article 324(1) to (3) of the Constitution and Section 18 of the 2023 Act, and that no communication, order, direction, appeal or other act may be issued or represented as an act of the Election Commission save pursuant to a decision of the Commission taken unanimously or, upon disagreement, by majority, in the manner prescribed by Section 18 of the 2023 Act”.
The petitioner also asked the court to declare the Special Intensive Revision (SIR), and all actions, decisions, directions, and measures taken under it, invalid from the very beginning and without legal authority. The petitioner argued that the SIR was undertaken without the necessary statutory or constitutional authority and without following the procedure required by law.
He further asked the court to declare that any addition, removal, deletion, restoration, or modification of names in the electoral rolls carried out solely as part of the SIR would have no legal effect. However, this would not prevent or invalidate any changes to the electoral rolls that are otherwise lawfully made under the Constitution, the Representation of the People Act, 1950, and the Registration of Electors Rules, 1960.