New Delhi, Oct 5: The Supreme Court on Monday refused to pass any interim direction restraining Chief Election Commissioner (CEC) Gyanesh Kumar from taking decisions pending final disposal of a petition challenging the manner in which the Election Commission has been functioning.
A bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana issued notices to the Election Commission and the Centre on a plea alleging that several decisions were taken without the approval of the two other election commissioners.
The court said it would examine the decisions taken by the poll panel and annul any found to be contrary to law.
“We will examine all the decisions. If any decision is not in accordance with the law, we will annul it. You know the power of the court,” the bench said.
The bench also indicated that it may examine the statutory immunity granted to the CEC, observing that the protection continues even after the officeholder demits office.
Senior advocate Vikas Singh, appearing for Patna resident Rakesh Kumar Singh, sought an interim direction restraining Kumar from taking any further decisions and also sought his suspension, saying citizens were feeling unsafe about their voting rights.
The bench, however, pointed out that suspending the CEC could stall the functioning of the Election Commission.
“Who will conduct the elections?” it asked.
Singh submitted that the two other election commissioners, Sukhbir Singh Sandhu and Vivek Joshi, could discharge the functions.
The bench said it could not pass an order without hearing the respondents and needed to examine the decisions taken by the poll panel.
Singh urged the court to direct that decisions of the EC be taken only unanimously or by majority.
“There is a mandatory law and we expect them to follow it. If there is any violation, we can very well undo it. If there is no unanimity or majority as mandated under the law, then the court can very well annul those decisions,” CJI Kant said.
Justice Bagchi asked whether the court could conclude, without hearing the respondents, that all the decisions were unilateral.
“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 a decision that all decisions were unilateral? We expect them to respond in a clear, transparent manner,” he said.
Singh claimed that the electoral roll itself had been “vitiated” by unilateral decisions of the CEC. He also referred to an Election Commission press release issued after a controversy triggered by a news report, saying it amounted to an admission of the allegations.
CJI Kant said the court could not rely solely on newspaper reports and would have to consider the responses of the EC and the Centre.
The court also tagged a connected petition filed by advocate Shailendra Mani Tripathi with Singh’s plea. It asked senior advocate Menaka Guruswamy, appearing for Tripathi, to amend the prayers in the petition, if required, saying they appeared to be “all jumbled up”.
The court has sought responses from the EC and the Centre within a week and asked them to furnish relevant details.
The petitions follow a report by The Indian Express on September 25 that Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi had objected on record at least 14 times over the previous 10 months to decisions and orders relating to the Special Intensive Revision (SIR) of electoral rolls, which they said were issued without their knowledge or recommendation.
Facing questions over the objections raised by the two commissioners, the EC had said differing views and observations were a normal part of deliberations in any institution and maintained that all its orders had full legal sanction and followed established statutory procedures.
Singh’s PIL seeks a determination of whether the CEC had individually exercised powers legally vested in the EC as a whole and, if so, a declaration that such actions were unauthorised.
The petition also seeks an interim direction that Kumar not exercise the functions of CEC pending the final hearing and that the Commission’s business during that period be conducted through the unanimous decision of Sandhu and Joshi.
