NEW DELHI, Sept. 30
A petition before the Supreme Court seeking criminal prosecution of Chief Election Commissioner Gyanesh Kumar over alleged voter deletions during the Special Intensive Revision of electoral rolls has raised a wider legal question over how far India’s election commissioners are protected from prosecution for actions taken in office.
The petition, filed under Article 32 of the Constitution by advocate Shailendra Mani Tripathi, alleges that decisions, guidelines and software changes connected with the Special Intensive Revision, or SIR, were undertaken by Kumar without the concurrence of the other two Election Commissioners, Sukhbir Singh Sandhu and Vivek Joshi.
It seeks prosecution under Section 32 of the Representation of the People Act, 1950, along with an investigation by a Special Investigation Team or under judicial supervision into the alleged deletion of about 13 crore names from electoral rolls.
The petition also seeks preservation of electoral database records and restoration of the original Form 6 used for enrolment of new voters. The Election Commission has since announced that it is restoring the original form.
The allegations have not been established by the Supreme Court. They raise separate questions concerning the Election Commission’s internal decision-making process, the statutory duties governing electoral rolls and the protection available to commissioners for actions performed in their official capacity.
At the centre of the first issue is whether the Chief Election Commissioner can act independently of the other Election Commissioners.
The Supreme Court addressed the institutional relationship between commissioners in its landmark T N Seshan v Union of India judgment, rejecting the proposition that the CEC could exercise authority as though the other commissioners were subordinate officials.
That principle is reflected in the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
Sections 17 and 18 govern the transaction of Election Commission business. The law provides that decisions should, as far as possible, be unanimous. Where commissioners disagree, the matter is decided according to the majority view.
A disagreement within the Election Commission is therefore not itself unlawful. The legal issue would arise if a matter requiring a decision of the Commission were implemented by the CEC despite the other two commissioners taking the opposite position.
The petition would consequently require the court to examine what decisions were actually taken during the SIR and whether a formal disagreement existed. Reports of differences between commissioners do not by themselves establish a violation of the law.
The second issue concerns the statutory framework governing electoral rolls.
Section 21(3) of the Representation of the People Act empowers the Election Commission to order a special revision. The Supreme Court, while examining the Bihar SIR, upheld the Commission’s authority to conduct such an exercise under Section 21(3) read with Article 324 of the Constitution.
The Commission’s power to conduct an SIR is therefore distinct from the question of whether particular decisions taken while carrying it out complied with electoral law.
Sections 22 and 23 of the Act deal respectively with correction of entries and inclusion of names, while the Registration of Electors Rules, 1960 prescribe procedures governing electoral registration.
The controversy surrounding Form 6 emerged partly from that framework.
If a software change merely alters the electronic processing of an existing statutory form, one set of legal considerations applies. If it effectively changes requirements prescribed by statutory rules, the question becomes whether such a modification can be made administratively without first amending those rules.
The petition also invokes Section 32 of the Representation of the People Act.
The provision creates an offence where an electoral registration officer, assistant electoral registration officer or another person required to perform official duties relating to the preparation, revision or correction of electoral rolls commits, without reasonable cause, an act or omission that breaches those duties.
A conviction can carry imprisonment of between three months and two years, along with a fine.
There is, however, an important procedural limitation.
Section 32(3) provides that a court cannot take cognisance of such an offence unless a complaint is made under the authority of the Election Commission or the Chief Electoral Officer of the state concerned.
That requirement creates an unusual complication where the allegation itself is directed against the Chief Election Commissioner.
A second legal barrier arises from Section 16 of the 2023 law governing the Election Commission.
It protects the CEC and Election Commissioners from civil or criminal proceedings for acts, statements or other conduct undertaken while acting, or purporting to act, in the discharge of official duties.
That protection does not necessarily establish that the underlying action was lawful. The critical legal question would be whether the conduct being challenged falls within the statutory protection for official duties.
If the alleged conduct is covered by Section 16, initiating or continuing criminal proceedings could face a substantial statutory obstacle. If a court determines that particular conduct fell outside the scope of official duties, the immunity question would have to be examined differently.
The boundaries of that protection are ultimately a matter of judicial interpretation.
The case also arises while the institutional structure governing appointments to the Election Commission is under separate Supreme Court scrutiny.
In Anoop Baranwal v Union of India in 2023, a Constitution Bench directed that, until Parliament enacted a law, appointments should be considered by a committee comprising the Prime Minister, Leader of the Opposition and Chief Justice of India.
Parliament subsequently enacted the 2023 law. It replaced the Chief Justice on the selection committee with a Union Cabinet minister nominated by the Prime Minister.
That arrangement is under constitutional challenge. On September 23, two Supreme Court judges delivered differing opinions on whether the matter required consideration by a larger Constitution Bench, leaving the Chief Justice of India to determine the appropriate bench. The law remains in force.
The legal protection governing removal of a CEC is a separate matter.
Article 324(5) provides the Chief Election Commissioner with strong safeguards against removal, intended to protect the office from political or executive pressure. Removal, however, is legally distinct from judicial review of an Election Commission decision or an attempt to establish personal criminal liability.
Courts can review Commission decisions, seek records and issue constitutional directions without removing an election commissioner.
The present case therefore does not turn on a simple question of whether a Chief Election Commissioner can ever be held legally accountable. It involves several distinct thresholds: whether the allegations are established, whether any statutory duty was breached, whether Section 32 applies, whether its procedural requirements can be satisfied and whether Section 16 immunity protects the conduct in question.
The Supreme Court’s consideration of the petition could consequently clarify a rarely tested boundary in Indian electoral law: how the institutional independence granted to the country’s election commissioners interacts with legal accountability for decisions taken while exercising their constitutional functions.
