Supreme Court declines to suspend Gyanesh Kumar and says a modified Form 6 was not approved

The Supreme Court on Monday refused to suspend Chief Election Commissioner Gyanesh Kumar and issued notice to the Election Commission, to Kumar, and to the other two election commissioners. A bench of Chief Justice Surya Kant and Justices Joymalya Bagchi and V. Mohana also issued notice to the Union government, to Deputy Election Commissioner Maneesh Garg, and to commissioners Sukhbir Singh Sandhu and Vivek Joshi. The petitions asked for suspension and prosecution over decisions taken during the special intensive revision of electoral rolls.

The bench did not grant the interim order the petitioners wanted. Chief Justice Kant asked, in substance, who would conduct the elections if the chief commissioner were suspended at once. He then set the rule the court expects the commission to follow. "They are expected to take unanimous decisions. If there is no unanimity, it has to be by majority," he said, as quoted by LiveLaw. "There is a mandatory law, and we expect them to follow it. If there is any violation, we will undo."

Fourteen objections in ten months

The petitions followed an Indian Express report of 23 September that Sandhu and Joshi had formally objected 14 times in 10 months to decisions related to the special intensive revision, and that some of those decisions had been taken without their knowledge. The reported objections covered changes to Form 6, appeals against the inclusion of voters in West Bengal, and the handling of voter data in Goa. Form 6 is the statutory application for a new voter. In one written objection, Sandhu was quoted as saying the poll body had acted against the advice of both commissioners and as describing the action as unauthorised and illegal.

That record is why the bench's sentence on unanimity matters. The Chief Election Commissioner and Other Election Commissioners Act requires the commission to function as a body. A chief commissioner who proceeds without the other two is, on the petitioners' case, outside that statute. The court has not ruled on the 14 objections. It has said the legal expectation is unanimity, and failing that a majority, and it has left the factual dispute to the replies.

Form 6, and what the court says it did not approve

On the form itself, the bench separated its own earlier proceedings from the document now online. "Modified Form 6 has not been approved by us, let us be very clear. When record has produced, we would like to see who has modified," Chief Justice Kant said. The court is therefore asking, once the record is filed, who altered the new-voter form and on what authority. That is a narrower question than the suspension the petitioners sought, and it is the one the bench has put on the next hearing.

Congress general secretary Jairam Ramesh had, the same morning, demanded Kumar's resignation and called him a liability, citing Justice Ujjal Bhuyan's warning that a process disenfranchising millions would be arbitrary. The court did not act on that political demand. It refused the interim suspension, issued notice, and fixed the Form 6 modification as a point on which it wants a name. The Election Commission has said in recent days that differing views are part of deliberation and that its orders have legal sanction. The replies to Monday's notice will have to say whether the 14 written objections were deliberations or, as Sandhu's quoted note put it, decisions taken against the advice of both other commissioners.

Until those replies arrive, Kumar remains in office, the special intensive revision continues, and the modified Form 6 stands as a document the Supreme Court says it did not approve. The next hearing is the point at which the commission has to show who changed the form, and whether the 14 objections were put to a majority or set aside.