SC refuses to suspend CEC, issues notice on plea challenging ECI decisions

NEW DELHI: The Supreme Court on Monday declined to pass an ex-parte interim order seeking suspension of Chief Election Commissioner Gyanesh Kumar, observing that it should first seek the response of the Election Commission and other respondents on the allegations that several SIR-related decisions were taken unilaterally by the CEC.

A bench of Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice V Mohana issued notice to the Union of India, the Election Commission of India, CEC Gyanesh Kumar, Election Commissioners Dr Sukhbir Singh Sindhu, Dr Vivek Joshi, Dy Election Commissioner Maneesh Garg IAS and DG(IT) Seema Khanna on the petition.

The petition was filed following a report of The Indian Express that 14 crucial decisions relating to the Special Intensive Revision were taken in the name of ECI by the CEC, ignoring the objections recorded by two ECs.

Senior Advocate Vikas Singh, for petitioner Rakesh Kumar Singh, submitted that though the challenge to the appointment process under CEC law was pending before the larger bench, “some interim measures are needed as every citizen was now feeling unsafe about their voting rights.”

He referred to Section 18 of the CEC Act, which says that the decisions of the Election Commission of India should be as far as possible unanimous, and if not unanimous, then the decision should be by majority.

He also referred to Section 16, which gives legal immunity to the CEC for acts taken in discharge of official duties, and said that such a protection is not available to Supreme Court judges. Singh pressed for an interim order to suspend the CEC immediately. “We are dealing with a grave situation which can undermine the very basis of our democracy.

The elections were conducted with the ECI having some respect. But today we are having a situation where the CEC is acting in a manner which is completely contrary to the statutory framework,” Singh stated. When the bench said that it has to first decide if there was any violation, Singh said, “The Court has to pass some interim orders, otherwise the country will burn.”

The bench said that if the CEC is suspended, the ECI functioning will be stalled. “Who will conduct the elections?” the bench asked. Singh proposed that the other two ECs can discharge the functions.

The bench stated that it has to seek the responses of the persons before passing any order, Singh submitted that the Court should then order that the ECI should take decisions only unanimously or by majority. The CJI said, “There is a mandatory law, and we expect them to follow it. If there is any violation, we will undo.”

Singh then asked, “What all can your lordships undo? Your lordships cannot undo an election, or undo an elected government.” Singh stated that the electoral roll itself was vitiated because of the unilateral decisions.

Justice Bagchi then asked if the Court can pass such an order ex-parte without hearing the respondents. “If records show some decision was not unanimous etc., we will injunct those decisions and say they are ultra-vires. Can we ex-parte come to decision that all decisions were unilateral? We expect them to respond in a clear, transparent manner,” Justice Bagchi said.

When Singh said that the press release of the ECI itself amounted to admitting the news reports, CJI Kant said that the Court cannot pass an order solely relying upon newspaper reports.

The bench ultimately issued notice on the petition. The bench also issued notice on a connected petition filed by Adv Shailendra Mani Tripathi, seeking similar reliefs. Senior Advocate Menaka Guruswamy appeared in the connected matter.