SC seeks ECI records amid SIR row

As protests seeking the removal of the Chief Election Commissioner (CEC) continue, the Supreme Court on Monday declined to pass any interim order restraining him over allegations that he took several decisions unilaterally despite objections from the two other election commissioners (ECs). The SC said it will examine all decisions of the Election Commission of India (ECI) and annul those found not to be in accordance with law. 

Issuing notice, the SC directed the poll body to produce records of decisions under challenge in petitions questioning the CEC’s exercise of powers, including the controversial changes to Form 6. The court also clarified that it had not approved “any” modification to Form 6, used for enrolling new voters in various States. Form 6 is the application through which a new voter seeks inclusion of their name in the electoral roll.

A Bench of Chief Justice of India (CJI) Surya Kant and Justices Joymalya Bagchi and V Mohana said it may also examine the immunity clause in the law,, which protects the CEC even after leaving office. “We will examine all the decisions. If any decision is not in accordance with the law, we will annul it. You know the power of the court,” the Bench said as it pointed out that the immunity granted to the CEC is something which even judges don’t have.

The Bench said that “any modification to Form 6 has not been approved by us. Let’s be clear. When records are produced, we would like to see who has modified it”. Form 6 is an application through which an eligible person seeks first-time inclusion in the electoral rolls.

The developments came ahead of a proposed protest outside the ECI headquarters on Tuesday by INDIA bloc parties, which have been demanding CEC Kumar’s removal over the SIR row. ECI officials, however, asserted that Form 6 was not changed; instead, a declaration was attached to it through its Bihar SIR order, which the SC upheld in its May 27 order, as mentioned in the poll authority’s press note of September 26, they maintained.
The row over Form 6 ignited after a news report claimed that the two Election Commissioners — Sukhbir Singh Sandhu and Vivek Joshi — had formally recorded their dissent and allegedly described the changes to the said form as illegal. They also reportedly claimed that they were not informed about the alleged changes to Form 6.

At the heart of the dispute is whether the ECI could alter Form 6 and introduce SIR-linked requirements through its software without following the legal process required for changing the relevant electoral rules. During the hearing, the CJI specifically flagged the question of who authorised the modification.

Senior advocate Vikash Singh, appearing for petitioner Rakesh Kumar Singh, urged the SC to determine whether CEC Kumar has been individually exercising powers that legally belong to the ECI as a whole, and, if so, to declare those actions unauthorised and take appropriate legal action.

“There is a mandatory law, and we expect them to follow it. If there is any violation, we can very well undo it. If there is no unanimity or majority as mandated under the law, then the court can very well annul those decisions,” the CJI said. The Bench said it cannot pass any order ex parte and needs to see the decisions taken by the poll panel. Singh stated that the electoral roll itself has been vitiated because of the unilateral decisions by the CEC.

“If records show some decision was not unanimous, etc, we will injunct those decisions and say they are ultra vires. Can we ex parte come to a decision that all decisions were unilateral? We expect them to respond in a clear, transparent manner,” Justice Bagchi said.

Singh claimed that the press release issued by the ECI following a news report of discord in the ECI amounted to admitting to what the article stated. CJI Kant said the court cannot pass an order based solely on newspaper reports and must consider the responses of the ECI and the Union Government.