SC advocate seeks contempt action against CEC Gyanesh Kumar

Supreme Court advocate Brajesh Singh has sought the Attorney General's consent to initiate criminal contempt proceedings against Chief Election Commissioner Gyanesh Kumar. He alleges wilful disobedience of Supreme Court judgments governing how the Election Commission of India (ECI) functions.

In a letter to Attorney General R. Venkataramani dated September 24, Singh invoked Section 15(1)(b) read with Section 2(c) of the Contempt of Courts Act, 1971. He also cited Rule 3 of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975.

The request follows a September 23 Indian Express report. It stated that Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi had formally recorded objections at least 14 times over the past 10 months. These objections were to decisions taken by the poll panel without their knowledge or approval.

According to the report, the objections concerned changes to Form 6. They also touched on the addition and deletion of names from electoral rolls, and growing centralisation of access to the electoral database. The two commissioners reportedly described some of these actions as "unauthorised" and "illegal."

Singh's letter argues that these actions depart from the Election Commission's constitutionally mandated structure as a multi-member body. He cites the Supreme Court's ruling in T.N. Seshan v. Union of India. That judgment held that the CEC cannot be projected as "mightier than the institution."

Decisions of a multi-member Commission are decisions of the Commission as a whole, the ruling said, not of its Chairman alone. It positioned the CEC as primus inter pares, or first among equals, rather than a supreme authority. Singh also relies on the Court's 2023 ruling in Anoop Baranwal v. Union of India, which underscored the importance of an independent, impartial Election Commission for conducting free and fair elections.

The contempt request makes a further argument. Bypassing the other two Election Commissioners while issuing decisions in the name of the "Full Commission" would amount to wilful defiance of Supreme Court law under Article 141 of the Constitution, it says.

Singh also argued that alleged unilateral changes to the electoral database and voter rolls risk interfering with the electoral process. They also risk interfering with judicial scrutiny over electoral transparency, since they were made without the other commissioners' involvement. The Indian Express report he cites also noted that Sandhu and Joshi had raised concerns over the "gradual centralisation" of the electoral-roll database, and restrictions on statutory authorities' access to it.

The Election Commission has denied any suggestion of an internal rift. It said the matters raised were operational queries and suggestions at the draft stage, and that all decisions taken by the Commission were unanimous.

Singh contends the Indian Express investigation points to a "documented subversion" of constitutional machinery. Decisions taken by only one or two members of the Commission, he argues, cannot be dismissed as merely internal administrative matters.

Under Section 15(1)(b) of the Contempt of Courts Act, any person may move a contempt petition before the Supreme Court or a High Court. This requires the written consent of the Attorney General or the relevant Advocate General. If granted, contempt proceedings could then be instituted against Kumar before the Supreme Court.

The development comes a day after the Supreme Court, on September 23, referred petitions challenging the 2023 law governing the appointment of the CEC and Election Commissioners to a larger bench. Justice Dipankar Datta expressed prima facie doubts in a separate opinion about the independence of the current selection process.