New Delhi: The Supreme Court Monday refused to pass an interim order against Chief Election Commissioner (CEC) Gyanesh Kumar on pleas seeking his suspension and challenging his conduct over decisions allegedly taken unilaterally by him.
A bench led by Chief Justice of India Surya Kant was hearing two pleas and issued notice to two pleas, posting the matter next week.
One petition is filed by social activist Rakesh Kumar Singh alleging that the 2023 Act expanded the spectrum of immunity from legal action in favour of the CEC. The second petition filed by Shailendra Mani Tripathi sought an independent, high-powered Judicial Inquiry Commission or Special Investigation Team headed by an ex-SC judge to probe into the allegations against Gyanesh Kumar.
Both petitions also cite The Indian Express report revealing how two of the three Election Commissioners—Sukhbir Singh Sandhu and Vivek Joshi—objected on record at least 14 times in 10 months.
The second plea which is filed by advocate Tripathi also asks the top court to “declare all decisions, guidelines, directives, and software modifications initiated, approved, or implemented under Respondent No. 3 (CEC Gyanesh Kumar) without full commission concurrence or contrary to the majority opinion of the Election Commissioners (under Section 18 of the CEC and Other ECs Act, 2023) as unconstitutional, ultra vires, and void ab initio”.
The petitioners also challenge Section 16 which bars civil or criminal proceedings against current or former CECs and ECs for official acts or words discharged in the line of duty. Modeled after the Judges (Protection) Act, 1985, it shields bona fide actions.
The hearing comes after three days of protests in central Delhi seeking the resignation of CEC Gyanesh Kumar over alleged abuse of his post resulting in the mass deletion of millions of eligible names from the electoral rolls without multi-member consensus.
The two petitions
In Monday’s hearing, appearing for petitioner Rakesh Kumar Singh, senior advocate Vikas Singh pressed for an interim order to be issued that till the matter is decided in totality, the ECI will take only unanimous decisions. Singh also argued that till date there is no response by the ECI “denying” the report published by The Indian Express on 23 September, calling the EC’s press release “vague”.
“This is not a matter of pension of a retired person… it is about the credibility of the ECI,” Singh submitted before the bench seeking an interim order, adding, otherwise “this country will burn”.
The CJI noted that the ECI, as per the statute, is expected to take decisions unanimously. By issuing notice to the ECI and posting the matter next week, the court said it was trying to find out whether the statute was followed or not.
“If we find that statute not being followed—you know our powers,” CJI Surya Kant said.
Justice Joymalya Bagchi, also on the bench, noted that if irregularities are found in the EC’s functioning (after the EC’s response), the court will “injunct those decisions”—adding that “we expect them to respond in a clear transparent manner”.
The court concluded that this case is only about Section 18 of the 2023 Act which prescribes that ECI is supposed to regulate its “business procedures unanimously where possible, though differing opinions are resolved by majority vote”. The court will endeavour to find out whether Section 18 was adhered to or not.
The second petition filed by advocate Shailendra Mani Tripathi, seeks an SIT probe into the voter deletions and conduct of the CEC Gyanesh Kumar.
Appearing for the petitioner, senior advocate and TMC Rajya Sabha MP Menaka Guruswamy started her arguments with procedure taken up by the ECI for the Special Intensive Revision (SIR).
“Please see how SIR was conducted in Delhi,” she said pointing to the two new conditions added to Form 6. “Even I got a notice under this,” she said. She pointed at the lakhs of appeals pending before the Appellate Tribunal in West Bengal, even as one election is over and another is due.
The CJI then clarified any modified Form 6 has not been approved by the court and when the record will be produced (next week), the court would like to see who has modified it.
“When the franchise rights of the world’s largest democracy are under threat and SIR is being imposed, and the Chief Election Commissioner’s functioning is biased, to say the least” argued Guruswamy.
The court remarked that the larger challenge in the petition was fine but the prayers related to all the states. Some prayers referred to the SIR in Delhi, some about West Bengal, asking Guruswamy to limit herself to the prayers in the petition.
To this, she responded that she “stood by each and every prayer made in the petition… It (the plea) concerns the national functioning of the CEC, the Election Commissioners, and the institution of the Election Commission. That illegality is being protected by an unconstitutional law. What is the sanction for this kind of biased conduct? Is this discharge of official duty? I ask myself. We have grown up with free and fair elections in this country. They do not exist today. I stand by these prayers, each and every one of them. It is a national problem,” she argued.
(Edited by Viny Mishra)