Though India is not witnessing any major elections at present, the Election Commission of India has come into the spotlight after protests erupted across the country seeking the resignation of Chief Election Commissioner (CEC) Gyanesh Kumar.
Opposition parties and student outfits have demanded the removal and arrest of the CEC following revelations involving Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi.
According to an investigation report published by ‘The Indian Express’, Sandhu and Joshi had formally objected at least 14 times in 10 months to decisions taken by the poll panel, including those related to the Special Intensive Revision (SIR) of electoral rolls, which they said were made without their knowledge or approval. Congress and Left parties have alleged that Kumar exercised excessive control over the ECI and accused him of orchestrating vote rigging for BJP to hijack the poll results.
As the reported differences within the ECI became public, questions have been raised over the role of the two Election Commissioners in the constitutional body and the powers of the CEC.
Can the CEC take decisions unilaterally by bypassing the Election Commissioners? Here is what the Constitution and the law governing the poll panel say.
The Election Commission of India is an independent constitutional authority established under Article 324 of the Constitution to supervise, direct and control elections in India.
The Commission was initially a single-member body when it was established in 1950. It became a three-member body, comprising the CEC and two Election Commissioners, in 1993.
According to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, the CEC and Election Commissioners hold office for a term of six years from the date they assume office or until they attain the age of 65 years, whichever is earlier.
Though the CEC is the head of the Election Commission of India, it does not mean that he can overrule the Election Commissioners. As all three members of the body have equal voting power in decision-making, the CEC can not take unilateral decisions or reject the stand of the other two members.
The Commission functions as a three-member body, and when its members differ on a matter, Section 18 of the 2023 Act provides that the matter is to be decided according to the opinion of the majority.
The CEC does, however, have specific administrative responsibilities. These include coordinating the Commission's work and allocating its business among the CEC and Election Commissioners in accordance with the law and the Commission's procedure.
In a situation like the implementation of the Special Intensive Revision (SIR) of electoral rolls, the opinion of the two election commissioners plays a key role. According to the Chief Election Commissioner and Other Election Commissioners Act, 2023, the commission should try to reach a unanimous decision in every matter. If all members do not agree, the poll body must accept the opinion of the majority. As three of the members have equal voting power, if two of the Election Commissioners oppose the decision, the CEC must accept it without forcing them to follow his decision.Because of this rule, CEC Gyanesh Kumar is facing criticism for ignoring 14 objections raised by the Election Commissioners in 10 months.Section 18 of the Chief Election Commissioner and Other Election Commisioners Act, 2023 also encourages decisions through consensus in the poll body. But it does not mandate unanimity in decision-making. It also stresses that the CEC is not the power center, as responsibilities should be divided among all three members.
An Election Commissioner who disagrees with a proposal or decision can record his or her objections during the Commission's deliberations.
But a dissent does not, by itself, invalidate a decision. If the members disagree, the final decision is determined according to the majority opinion under Section 18.
A decision taken by the CEC is not automatically the final decision of the Election Commission merely because the CEC heads the institution.
Matters falling within the Commission's jurisdiction are dealt with by the Commission in accordance with the Constitution, the 2023 Act and its established procedures. Where members disagree, Section 18 provides for a majority decision.
The current controversy therefore, raises a question about whether particular actions were properly authorised and processed through the Commission's institutional decision-making mechanism, rather than simply whether the CEC has the authority to lead the ECI.
Under Section 16 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, courts cannot entertain or continue civil or criminal proceedings against a serving or former CEC or Election Commissioner for acts, things or words done in the course of their official duties.
This protection, however, does not mean that decisions of the Election Commission are beyond judicial scrutiny. Questions concerning the legality or constitutionality of an ECI decision can still be examined by the courts through appropriate proceedings. The Supreme Court is also examining a challenge to the constitutional validity of the immunity provision.
A report published by The Indian Express on September 23 brought to light what it described as a major internal rift within the Election Commission. According to the report, Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi had written to the Cabinet Secretary after their objections to key issues, including the Special Intensive Revision (SIR) and new electoral management software, were allegedly not acted upon.
The report also claimed that several orders of the Commission were issued without the knowledge or approval of the two Election Commissioners. Their objections reportedly included concerns over changes to statutory Form 6, which is used for voter registration, as well as the removal of eligible voters from the electoral roll in Goa.
When the news report led to a nationwide protest seeking the resignation and arrest of Gyanesh Kumar, the Election Commission issued a statement rejecting the allegations regarding the electoral roll management system and changes to Form 6. However, it has yet to respond to Gyanesh Kumar's alleged move to destroy the constitutional structure of the Election Commission by keeping the two members in the dark.