When the referee fumbles: Election Commission row explained in 7 key questions | India News
NEW DELHI: Elections are, by their very nature, a contest.Political parties fight for ground, candidates wage fierce campaigns and voters ultimately decide whom to trust with their mandate.Through it all, the Election Commission is meant to stand apart and monitor the process. Its role is to frame the rules, enforce them fairly and ensure that the contest remains even-handed.Yet, in recent days, the spotlight has moved away from those fighting the election and towards the institution meant to referee it.The players are no longer the only ones under scrutiny. Increasingly, the referee itself has become the subject of the debate.A report in The Indian Express claimed that Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi repeatedly raised objections with Chief Election Commissioner Gyanesh Kumar over decisions and communications that they said were issued without their knowledge or approval.The Election Commission has rejected the suggestion that the episode points to a breakdown in its functioning. It has maintained that differences of opinion are a normal part of institutional deliberation and that all final decisions of the Commission have been unanimous.That leaves a larger constitutional question at the heart of the controversy: how is India’s election watchdog actually supposed to function?Is the Chief Election Commissioner the boss of the Election Commission, or simply the first among three equals? What happens when the three commissioners disagree? And why has the law governing their appointment become a subject of such intense controversy?
What triggered the latest EC controversy?
On September 23, The Indian Express reported that Sandhu and Joshi had, on multiple occasions, objected to decisions and communications they said were taken or issued without their prior knowledge.According to the report, the two commissioners recorded such objections on at least 14 occasions over the past 10 months.The issues reportedly ranged from changes to electoral forms and access to the voter database to the allocation of work within the Commission and the filing of appeals involving electoral rolls.The report has since triggered a wider debate over whether the Election Commission’s three members are exercising their powers collectively, as the law envisages, or whether the CEC has acquired a greater role in practice.
What did the two ECs object to?
According to the Indian Express report, the concerns raised by Sandhu and Joshi covered several aspects of the Commission’s functioning.
- Changes to Form 6: The two commissioners reportedly objected to changes made to Form 6, the application citizens use to register as new electors, without following due process. In May, Joshi warned that the form could not be altered without an amendment to the Registration of Electors Rules, 1960. On August 13, Sandhu reportedly described the change as “unauthorised and illegal” and called for its immediate removal.
- Access to electoral roll data: The commissioners also reportedly raised concerns about whether statutory authorities responsible for maintaining electoral rolls had complete access to voter data on the ERONet portal. Joshi flagged what he described as the “gradual centralisation of the electoral roll database” and proposed an audit to establish that only authorised officials had credentials to modify voter data. Sandhu, separately, recorded that state-level election officials had complained of not having “proper and complete access” to ERONet. He also questioned whether the Commission’s director general of IT, Seema Khanna, had the legal authority to restrict access for statutory officials such as Electoral Registration Officers.
Reasons for objection by the other two election commissioners over the decision taken by CEC Gyanesh Kumar
- Changes in work allocation: Joshi and Sandhu reportedly wrote separately to the cabinet secretary objecting to changes in the allocation of work that removed a layer of oversight over the Commission’s IT infrastructure. They said the changes had been made without their knowledge.
- West Bengal SIR appeals: During the Special Intensive Revision of electoral rolls in West Bengal, the Election Commission filed around 16.10 lakh appeals involving voters whose names judicial officers had added. The appeals were heard by tribunals headed by retired high court judges appointed by the Supreme Court. According to the report, neither the two election commissioners nor West Bengal’s chief electoral officer were informed about the basis or process for filing these appeals.
- Restoration of voters in Goa: Another concern reportedly involved 97 eligible voters whose names had to be restored to Goa’s electoral rolls. Despite repeated requests from Electoral Registration Officers, the voters could not initially be restored because the ECI’s software did not have an option for reinstatement.
- Communications issued in the ECI’s name: The two commissioners also reportedly objected to communications being issued in the Election Commission’s name without what they considered to be the Commission’s full approval. They cited Article 324 of the Constitution as well as the 2023 law governing the poll panel.
Taken together, the reported objections raise a question that goes beyond any individual decision: how does a three-member constitutional body exercise collective authority when its members do not initially agree?
What did the Election Commission say?
The Election Commission strongly rejected the suggestion that its internal differences amount to a breakdown in decision-making, and added that all official orders and administrative directions had been issued unanimously.“Differing views and observations are a normal part of deliberation in any institution. They are a part of the decision-making process before a final decision is taken. Not only the three Commissioners, but every officer of the Commission is fully authorised to give his suggestions to the Commission for improving the electoral system,” the ECI said in a statement.“In recent months, the Commission has taken numerous decisions, issued instructions, introduced around 40 new initiatives and undertaken many electoral reforms, including the conduct of electoral roll revision (including SIR) across the country. All these decisions are an outcome of the unanimous decisions of the full Commission in the past one year,” the poll body added.It also criticised the media report, saying that highlighting specific internal notes over a period of 10 months gives only one part of the picture.“Highlighting certain specific internal notes/observations spread over the period of 10 months while overlooking the much larger body of approvals, decisions, instructions and initiatives give only one part of the picture,” it said.
The Election Commission stated that internal disagreements and suggestions from officers were a routine part of its decision-making process before reaching a final verdict.
The disagreement, therefore, is not simply over whether commissioners have expressed reservations. It is over what those reservations mean for the functioning of the institution as a whole.
CEC or ECs: Who has the final say?
This is where the 2023 law becomes important.Section 18 of the Chief Election Commissioner and Other Election Commissioners Act, 2023, provides that the Commission may, by unanimous decision, regulate how its business is conducted and allocate work among the CEC and the other Election Commissioners.It also says that, as far as possible, the Commission’s business should be transacted unanimously.But it makes an important provision for situations in which consensus is not possible.
The opposition objected over the 2023 EC law alleging that the panel arrangement is made to ‘favour’ the government in power
If the CEC and the other Election Commissioners differ on a matter, the issue is to be decided according to the opinion of the majority.In other words, the statutory framework does not make the CEC an executive superior to the other two commissioners. The three constitute the Commission collectively, while the CEC is the “first among equals”.The CEC can have a distinct role within the institution, but the law does not provide for a system in which the CEC’s view automatically prevails over the other two commissioners.Where the three disagree, the majority view is the deciding view.The controversy now centres on whether some of the decisions cited in the recent report were, in practice, implemented despite objections from the other two commissioners, and if so, how that squares with the statutory scheme governing the Commission’s decision-making.
Why is the 2023 EC law controversial?
The current controversy also brings back an older and deeper question: Who should appoint the people who conduct India’s elections?In March 2023, the Supreme Court ruled that Parliament had not yet enacted a law governing appointments to the Election Commission, despite Article 324 of the Constitution envisaging such a framework.Until Parliament enacted such a law, a Constitution bench prescribed an interim selection mechanism comprising the Prime Minister, the Leader of Opposition in the Lok Sabha and the Chief Justice of India.The court stressed that an independent Election Commission was essential for democracy and observed that those entrusted with conducting elections must be insulated from executive influence.
The Constitution outlines the removal guidelines for the CEC and details about the conditions of service as a CEC
Parliament subsequently enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.But the new law changed the composition of the selection committee.Instead of the Chief Justice of India, it provided for a Union Cabinet minister nominated by the Prime Minister. The committee therefore consists of the Prime Minister, a Union minister nominated by him and the Leader of Opposition in the Lok Sabha.The opposition has alleged that the 2023 Act gives the executive “overwhelming” control over the appointment of Election Commissioners. The government, meanwhile, has defended the law and its institutional framework.
Matter in Supreme Court
The dispute has now reached the Supreme Court, where a challenge to the validity of the appointment law produced a split verdict.A two-judge SC bench differed over whether the matter should immediately be referred to a Constitution bench. Justices Dipankar Datta and Satish Chandra Sharma disagreed on that question, although both agreed that the matter should ultimately be placed before the Chief Justice of India for consideration by a larger bench.
Section 18 of the CEC and Other Election Commissioners Act, 2023, outlines that the EC should ideally conduct business unanimously, but allows a majority opinion to decide matters when members disagree.
They also agreed that sending the case first to a three-judge bench would be of “little worth” and could further delay a final determination of the constitutional questions involved. The matter is likely to be heard by a 5-judge bench soon.The issue is vital as it extends beyond the current dispute inside the Election Commission. It touches a larger institutional question: How independent should the body conducting India’s elections be from the executive, and what safeguards should govern the appointment of those who head it?
Can a CEC actually be removed?
The latest controversy has also acquired a political dimension, with opposition parties preparing fresh notices seeking the removal of CEC Gyanesh Kumar.According to media reports, the notices, being drafted and vetted by experts, are expected to be submitted in the Lok Sabha and Rajya Sabha next week. The proposed notices are expected to include issues raised in the Indian Express report.This would not be the opposition’s first attempt.On April 7, Lok Sabha Speaker Om Birla and Rajya Sabha Chairperson CP Radhakrishnan rejected an earlier notice seeking Kumar’s removal. That notice had been signed by 130 Lok Sabha members and 63 Rajya Sabha members and alleged partisanship and arbitrariness in the conduct of the SIR exercise.
The CEC can be removed by the same procedure as a Supreme Court judge and requires a majority vote from both the Houses.
Separately, a notice submitted by 73 opposition MPs in the Rajya Sabha on April 24 seeking Kumar’s removal remains pending in the Upper House.But removing a CEC is deliberately difficult.Article 324(5) of the Constitution provides that the Chief Election Commissioner can be removed only “in like manner and on the like grounds as a Judge of the Supreme Court”.The same protection is incorporated into Section 11(2) of the 2023 Act.The other Election Commissioners enjoy a different safeguard: they cannot be removed from office except on the recommendation of the CEC.The higher threshold for removing a CEC is intended to protect the office from arbitrary or politically motivated removal.
What does it take to remove a CEC?
The removal process is rooted in the constitutional procedure applicable to Supreme Court judges.Article 124(4) of the Constitution, which lays down the procedure for removing a Supreme Court judge, states that a judge can be removed only by an order of the President following an address by each House of Parliament.Such an address must be supported by a majority of the total membership of that House and by a majority of at least two-thirds of members present and voting, in the same session, on the ground of proved misbehaviour or incapacity.The process begins with a notice of motion in either House of Parliament alleging misbehaviour or incapacity. The notice must be signed by at least 100 MPs in the Lok Sabha or 50 MPs in the Rajya Sabha.The presiding officer of the concerned House can admit or refuse the motion after considering the material and information available. If the motion is admitted, an inquiry is conducted into the charges by a committee constituted for the purpose.If the charges are established, the motion must be passed by a majority of the total membership of each House and by a two-thirds majority of members present and voting in both Houses.Once both Houses pass the motion in accordance with these requirements, an address is made to the President, who then issues the order removing the CEC.The President’s role at this stage is constitutional and formal once Parliament has passed the required address.
How the EC evolved
The current structure of the Election Commission is itself the product of an institutional evolution.When the ECI was established in 1950, it was a single-member body, with the Chief Election Commissioner as its sole member.It became a three-member body for the first time in 1989, but that arrangement was short-lived. In January 1990, the VP Singh government reverted the Commission to a single-member structure.The system changed again in October 1993, when the PV Narasimha Rao government appointed MS Gill and GVG Krishnamurthy as Election Commissioners alongside CEC TN Seshan.Seshan challenged the appointments in the Supreme Court, arguing that the addition of commissioners diluted the authority of the CEC.In its 1995 judgment, a Constitution bench upheld the multi-member structure.The court made clear that the CEC was not institutionally superior to the other Election Commissioners. The three were intended to function collectively, with differences being resolved through the decision-making mechanism of the Commission.That judgment established the broad institutional framework that exists today.
The big picture
The Election Commission is not designed as a hierarchy in which one person commands and two others merely assist. Nor is it simply three independent offices operating in parallel. It is a constitutional body meant to function collectively.The law provides for unanimity where possible and a majority where consensus fails.The CEC occupies the position of first among equals, rather than that of a superior authority.The significance of the current controversy, therefore, lies not merely in the existence of disagreements within the Commission. Differences are inevitable in any institution exercising such enormous constitutional responsibility.The larger question is what happens after those differences arise: whether they remain part of an internal deliberative process, as the ECI maintains, or whether they reflect a deeper dispute over how collective authority is being exercised.
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The credibility of an election does not rest only on the final tally of votes.It also rests on whether voters believe that the rules were applied fairly, the institutions enforcing them remained above the contest and the process was conducted without favour or hidden influence.The Election Commission, therefore, carries a burden that goes beyond administering polls: it must command confidence across the political spectrum and among voters themselves. Any perception that the referee is divided, opaque or partisan can cast a shadow over the process, even when the electoral machinery continues to function formally within the law.In the end, public trust is not built merely by declaring an election free and fair; it is built by ensuring that voters have little reason to doubt that verdict.
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