NEW DELHI: Supreme Court on Monday asked the Election Commission, CEC Gyanesh Kumar and ECs S S Sandhu and Vivek Joshi to clarify whether crucial decisions regarding the special intensive revision (SIR) of voter rolls were taken unilaterally by the CEC, and said it would injunct (bar) those decisions by the three-member commission which were neither unanimous nor by majority.A bench of CJI Surya Kant and Justices Joymalya Bagchi and V Mohana said irrespective of powers vested in the CEC, the law clearly mandates that all decisions must either be by unanimity or by majority among the three members of the EC. “If we come across instances (where CEC has unilaterally taken decisions), we will annul them,” it said.The statement came after senior advocate Vikas Singh, appearing for a PIL petitioner, strongly argued for an interim direction to the EC to only take decisions by unanimity during pendency of the petition as the amended CEC and Other ECs (Appointment, Conditions of Service and Term of Office) Act, 2023, gave the CEC enormous powers.
The PIL has sought scrutiny of the validity of SIR decisions and ”alterations” in Form 6 for new voters. Singh said since the court could not undo elections, a direction must be issued that in the interregnum, EC must follow the statutory mandate. He pleaded that EC be directed to preserve all records on SIR decisions and Form 6 alteration and produce them before SC for scrutiny.
CEC, ECs need to either rebut or endorse allegations about ‘unilateral decisions’
Let us have some authenticated facts before us through their responses. They must respond in a clear and transparent manner. If the records show some of the decisions are not taken by majority, we will injunct those. But we cannot put the cart before the horse, the bench said while also issuing notices to the Centre, deputy EC Manish Garg and EC’s director general (IT) Seema Khanna.This has set the stage for the CEC and, more crucially, the two ECs to either endorse or rebut the allegation that important decisions on SIR were taken by Gyanesh Kumar unilaterally and in violation of the law which lays down that the commission’s calls are to be made either unanimously or, failing that, by majority. The allegation, based on a newspaper report, is at the core of the controversy which has reignited opposition to SIR.Senior advocate Vikas Singh, appearing for a PIL petitioner, also questioned the validity of Section 16 of the 2023 Act, which provided that “no court shall entertain or continue any civil or criminal proceedings against any person who is, or was, a CEC or an election commissioner for any act, thing or word, committed, done or spoken by him when, or in the course of acting or purporting to act in the discharge of his official duty or function”.He said this was way beyond the immunity enjoyed even by SC judges and especially when it was not extended even to the PM.Justice Bagchi said, “We will examine the expression ‘or was’. Protection while in office is understandable. Such protection (as provided under Section 16) is perhaps only with regard to the President. It is not given to constitutional court judges under Judges Inquiry Act.”Singh pleaded for suspension of the CEC or divesting him of his authority. When the bench asked who would conduct elections, Singh said the other two ECs would do it. He said in the interim, the SC-mandated selection panel for CEC should be brought back in which the CJI is included along with the PM and the LoP. The 2023 Act replaced the CJI with a Union minister nominated by the PM.
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When the bench declined, Singh said the situation was so grave that it could undermine the very basis of our democracy. “Today, the CEC is acting in a manner which is contrary to the statute under which he is appointed. Court should pass some interim orders (restraining the CEC from discharging his functions), otherwise the country will burn,” he said.Patna-based petitioner Rakesh Kumar Singh has sought a direction to EC to “produce before SC the complete original and primary records relating to the matters pleaded herein, including minutes, agendas, approvals, file notings, work allocation and delegation orders, IT-access records, server logs, audit trails and database-change histories concerning the functioning of the commission, ERONet/EClNet, alteration of Form 6 and filing of appeals before the Bengal appellate tribunals”.
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