SC refuses to suspend CEC Gyanesh Kumar, seeks response on ‘unilateral’ decisions

The Supreme Court on Monday, October 5, refused to pass an interim order suspending Chief Election Commissioner Gyanesh Kumar, but sought a response to allegations that he took decisions unilaterally during the ongoing Special Intensive Revision (SIR) of electoral rolls.

A bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana said it would proceed on the presumption that decisions taken by the Election Commission of India (ECI) were in accordance with the law. However, the court questioned whether decisions of the poll panel could be taken without the concurrence of all three Election Commissioners.

“They are expected to take unanimous decisions… if there is no unanimity, it has to be by majority,” CJI Surya Kant said.

The court was hearing a batch of petitions seeking action against Gyanesh Kumar, including a plea seeking his suspension and prosecution over alleged unilateral decisions taken without the concurrence of Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi.

Senior advocate Vikas Singh sought an interim order suspending Gyanesh Kumar or divesting him of his powers pending the hearing of the petitions.

In a connected plea, senior advocate Menaka Guruswamy questioned the functioning of the ECI and alleged irregularities in the SIR process, including changes made to statutory Form 6. She argued that the form, prescribed under the Representation of the People Act, could not be modified in the manner alleged.

The court clarified that it had not approved the modified Form 6. The clarification came days after the ECI, in a statement issued on September 26, said that the declaration attached to Form 6 for the SIR had been “upheld by the SC”. During Monday’s hearing, CJI Surya Kant made it clear that the court had not approved the modified Form 6.

Guruswamy cited Delhi and West Bengal as examples and claimed that a significant number of voters had been affected by the SIR exercise. She also referred to pending appeals before appellate tribunals and argued that the exercise could affect voters’ franchise rights.

“This is not supposed to be state-specific. The state is only being used as an illustration,” Guruswamy told the court, arguing that the petitions concerned the functioning of the ECI as a national institution.

She alleged that the CEC’s functioning was biased and said the petitioners were challenging what they considered an institutional failure in protecting free and fair elections.

“We have grown up with free and fair elections in this country. They do not exist today,” she said.

The bench, however, indicated that it was aware of the issues raised in the petitions. When Guruswamy sought to have the matter tagged with another petition concerning alleged unilateral decision-making by the CEC and the SIR exercise, the court said the cases had already been tagged.

The court issued notice on the plea and tagged it with Rakesh Kumar Singh v Union of India, which concerns the alleged unilateral functioning of the CEC and the ongoing SIR exercise.