ON MONDAY, THE SUPREME COURT issued notice on petitions seeking the suspension of Gyanesh Kumar from functioning as Chief Election Commissioner and directions for his prosecution over alleged unilateral decisions on the conduct of the Special Intensive Revision (SIR) of electoral rolls, which the petitioners say led to large-scale disenfranchisement.
A Bench of Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V. Mohana, however, refused to restrain Gyanesh Kumar from performing his functions as CEC.
The Bench said it would first call for replies from the Union of India, the Election Commission, Chief Election Commissioner and the two other Election Commissioners.
The Bench also declined, for the present, to direct that the Election Commission take decisions only unanimously.
The Bench told senior advocate Vikas Singh, appearing for petitioner Rakesh Kumar Singh, that it would not pass an order solely on media reports and would first call for the reply from respondents for authentic information.
Singh referred on Section 10 of the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991:
“10. Disposal of business by Election Commission.—(1) The Election Commission may, by unanimous decision, regulate the procedure for transaction of its business as also allocation of its business amongst the Chief Election Commissioner and other Election Commissioners.
(2) Save as provided in sub-section (1), all business of the Election Commission shall, as far as possible, be transacted unanimously.
(3) Subject to the provisions of sub-section (2), if the Chief Election Commissioner and other Election Commissioners differ in opinion on any matter, such matter shall be decided according to the opinion of the majority.”
He then referred to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which repealed the 1991 Act. Section 18 provides:
“18. (1) The Election Commission may, by unanimous decision, regulate the procedure for transaction of its business and also allocation of its business amongst the Chief Election Commissioner and other Election Commissioners.
(2) All business of the Election Commission shall, as far as possible, be transacted unanimously, and if the Chief Election Commissioner and other Election Commissioners differ in opinion on any matter, such matter shall be decided according to the opinion of the majority.”
Singh argued that the procedure for the transaction and allocation of business must be decided unanimously, and that only the discharge of functions, where opinions differ, may be by majority. The Bench did not appear inclined to accept that reading.
He also relied on Section 16 of the 2023 Act, which grants immunity to the CEC and other Election Commissioners. He said no such immunity is available even to Supreme Court judges. Section 16 states:
“16. Notwithstanding anything contained in any other law for the time being in force, no Court shall entertain or continue any civil or criminal proceedings against any person who is or was a Chief Election Commissioner 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.”
There was no corresponding provision in the 1991 Act.
When Singh pressed for the suspension of Gyanesh Kumar, the Bench asked, “Who will conduct the elections?” Singh said the other two Election Commissioners could discharge the functions.
When Bench said it had power to annul the decisions, Singh replied, “Your Lordships cannot undo an election, or undo an elected government.”
The petition states “from a body of contemporaneous, written, on record material, namely file notings and formal communications by two of the three sitting Election Commissioners, Dr. Sukhbir Singh Sandhu and Dr. Vivek Joshi, addressed to the Commission's own officers and, on at least two occasions, to the Cabinet Secretary of India, recording, between 28 October 2025 and 14 August 2026, at least fourteen distinct objections to steps taken in the name of the Election Commission without what the two Commissioners describe as the Commission's approval.”
It adds “These objections concern, among other things: communications and orders issued in the name of the Election Commission without the Commission's approval; an absence, for over a year, of agendas circulated before, and minutes circulated after, meetings of the Commission; foreign travel undertaken without the Commission's approval; a substantive change made in July 2026 to the statutory Form 6 despite an on file warning by Commissioner Joshi, concurred in by Commissioner Sandhu, that such a change could not lawfully be made without an amendment to the Registration of Electors Rules, 1960; the alleged progressive centralisation, in the Commission's own IT establishment, of control over access to the ERONet/ECINet electoral roll database, said to bypass the statutory Electoral Registration Officers; a change to the internal work allocation order removing a layer of oversight over that IT establishment, made, the two Commissioners say, without their knowledge, and which they purported to strike down; and the filing of appeals, on behalf of the Election Commission, before Court constituted tribunals in West Bengal, without the two Commissioners being informed of who authorised those appeals or under what authority.”
The petition argues that the challenge to the continuance of Gyanesh Kumar in the office of Chief Election Commissioner rests, at its foundation, on a matter of the gravest constitutional consequence: elections and electoral-roll exercises conducted during a period of sustained, contemporaneous, on-record dissent within the Commission itself cast a serious doubt upon the integrity of the electoral process so conducted.
“This Hon'ble Court, when it considered and permitted the Special Intensive Revision to proceed, including by its direction of 29.01.2026 that voters flagged for "logical discrepancies" be afforded personal hearings, did so on the understanding, as represented before it, that the SIR was an exercise undertaken by and on behalf of the Election Commission of India as a constitutional body, and not an exercise undertaken at the instance of Respondent No. 3 alone”, the petitioner states.
The Bench also issued notice in the connected petition filed by advocate Shailendra Mani Tripathi. Senior advocate Menaka Guruswamy appeared in that matter.
Guruswamy said that we grew up with free and fair elections, and that the same has not been happening nowadays.
When the CJI said the prayers were jumbled up, Guruswamy said she stood by each of the prayers in her petition.
These proceedings follow an Indian Express report last month that Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi recorded at least 14 written objections between October 2025 and August 2026 to SIR-related steps taken in the name of the Election Commission, which they said were taken without their knowledge or against their advice.
