निर्वाचक आयोग की स्वतंत्रता और जवाबदेही का संतुलन: संविधानिक चुनौती

The Election Commission of India has a paradoxical constitutional task. It must make the rules and procedures of elections sufficiently certain that the outcome remains genuinely uncertain. The political scientists Ujjwal Kumar Singh and Anupama Roy use this tension between “procedural certainty” and “democratic uncertainty” to explain the commission’s place in India’s electoral order (Election Commission of India: Institutionalising Democratic Uncertainties, 2019, Oxford University Press).

That formulation also exposes the commission’s accountability problem. The commission must be insulated from governments and parties because they have an immediate stake in elections. Yet decisions taken in its name determine who gets on the electoral roll, what information voters must provide, and how electoral administration works. Independence protects the referee from the players. Accountability asks whether the referee acts through rules, reasons, and procedures that can be examined.

The constitutional scholar Tarunabh Khaitan places electoral commissions among “guarantor institutions”, bodies created to protect constitutional norms that ordinary political institutions may have incentives to weaken. Their effectiveness, he argues, depends on expertise, independence, and accountability working together (“Guarantor Institutions”, 2021, Asian Journal of Comparative Law, Cambridge University Press on behalf of the National University of Singapore).

The difficulty of combining them has become unusually concrete in two petitions before the Supreme Court concerning Chief Election Commissioner (CEC) Gyanesh Kumar and the functioning of the three-member commission. The October 5 hearing is the latest development, but the larger issue is likely to outlast it: how can the decisions of an institution protected from day-to-day political control be made accountable without making it answerable to the government of the day?

Article 324 gives the Election Commission “superintendence, direction and control” over electoral rolls and elections. Parliament has supplied the statutory framework through the Representation of the People Acts and related rules, while the Supreme Court has recognised room for the commission to act where legislation leaves gaps, subject to existing law.

Ujjwal Kumar Singh and Anupama Roy describe the judicially developed authority under Article 324 as a “reservoir of powers”, allowing the commission to perform overlapping regulatory and administrative functions (“Regulating the Electoral Domain: The Election Commission of India”, 2018, Indian Journal of Public Administration, SAGE Publications for the Indian Institute of Public Administration).

Here, accountability becomes harder than it appears. M. Mohsin Alam Bhat argues that much of the commission’s influence works through “architecture, nudge and notice”, not only through formal orders. A database design, online field, warning, workflow, or access restriction can shape electoral conduct as effectively as a formally published rule, while remaining harder for outsiders to scrutinise (“Governing Democracy Outside the Law: India’s Election Commission and the Challenge of Accountability”, 2021, Asian Journal of Comparative Law, Cambridge University Press on behalf of the National University of Singapore).

Bhat calls this a problem of operational accountability. Because such routine decisions are difficult to oversee continuously, he argues that greater weight must fall on structural accountability, including the institution’s composition, tenure, competence, and independence. The petitions now before the court bring both forms of accountability into the same dispute.

More than its chairman

The petition filed by Rakesh Kumar Singh, a Patna resident, begins with a textual point. Article 324 vests electoral powers in the Election Commission. When other Election Commissioners are appointed, Article 324(3) describes the CEC as its Chairman. The petition argues that chairmanship does not convert the CEC into the commission itself.

Section 18 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 makes the commission’s collective character more explicit. The commission may regulate its procedure and allocate business among its members by unanimous decision. Its business should, as far as possible, be transacted unanimously. If members disagree, the majority prevails.

The provision accepts disagreement. The legal question begins when disagreement is followed by action. Was the issue put before all three Commissioners? Was a majority view recorded? Was the eventual action covered by a prior allocation of business? Or was something implemented in the commission’s name without a decision of the commission?

That question has older roots. In T.N. Seshan v. Union of India in 1995, the Supreme Court upheld the multi-member commission and rejected the contention that the other Election Commissioners were subordinate to the CEC.

Rakesh Kumar Singh’s petition also recognises the evidentiary problem. It relies on reported objections by Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi but says those objections should not by themselves be taken as proof that each disputed action was unlawful. It asks for agendas, minutes, approval sheets, file notings, and allocation orders showing what was decided, by whom, and under what authority.

What the hearing changes

At the October 5 hearing, a bench led by Chief Justice of India Surya Kant declined an immediate request to restrain Kumar from functioning as CEC. It said it would first hear the respondents and examine authentic material rather than proceed on allegations reported in the press. The court issued notice and indicated that a decision shown to have been taken outside the statutory process could later be restrained or annulled.

That approach narrows the dispute. The court need not first decide whether a constitutionally protected CEC can temporarily be prevented from exercising the functions of the office. Article 324(5) gives the CEC protection against removal equivalent to that of a Supreme Court judge. Rakesh Kumar Singh’s interim prayer seeks to restrain Kumar from functioning as CEC while the case is heard, rather than permanent constitutional removal.

Individual decisions of the commission are easier to test. If a decision belongs to a three-member body, the documentary trail should show how that body reached it.

The second petition, filed by the advocate Shailendra Mani Tripathi, seeks wider relief. It asks for the quashing of allegedly unilateral decisions, cancellation of 16.10 lakh West Bengal appeals said to have been filed in the commission’s name, restoration of electoral officials’ access to ECINET (the commission’s digital platform), preservation and forensic examination of digital records, relief concerning 97 Goa electors, an independent inquiry or Special Investigation Team, and prosecution of officials found responsible.

The breadth of those prayers shows why accountability cannot begin by attaching personal culpability to every disputed administrative outcome. The first task is to establish the institutional chain of authority.

Form 6 and the software trail

The sharpest illustration concerns Form 6, the form used to seek inclusion in an electoral roll.

The controversy concerns an online requirement, linked to the Special Intensive Revision (SIR) of electoral rolls, that asks whether an applicant, a parent, or a grandparent appeared in the roll prepared during the previous revision. According to Rakesh Kumar Singh’s petition, Joshi recorded in May that Form 6 could not lawfully be altered in this manner without amending the Registration of Electors Rules, 1960, and Sandhu concurred. Yet the challenged requirement appeared online in July, after which Sandhu described the change as “unauthorised/illegal”. These remain allegations that require verification against the commission’s records.

The accountability issue does not disappear if the commission’s answer is that Form 6 itself was never formally amended and that the online requirement was only an accompanying declaration. For an applicant, a field that must be answered before an online form can proceed can operate as a real condition even if it is absent from the printed statutory form.

This is the kind of “architecture” problem Bhat identifies. As electoral administration migrates to ECINET, the audit trail behind software changes becomes part of the accountability trail. Rakesh Kumar Singh’s petition asks for server logs, audit trails, and database-change histories relating to ECINET and Form 6.

What the court approved earlier

On September 26, after a meeting of all three Commissioners, the Election Commission stated that the declaration attached to Form 6 for the SIR had been upheld by the Supreme Court. It also said that the principal SIR orders and schedules had been approved unanimously. The meeting decided that ECINET would be reviewed by a committee including an independent expert from an IIT or an Indian Institute of Information Technology, and that future IT modules would go through a committee before the commission’s approval.

The commission was referring to the Supreme Court’s May 27 judgment upholding the Bihar SIR. That judgment accepted that an intensive revision could require documentation beyond ordinary Form 6 and recognised a degree of residual authority in the commission to design an SIR-specific documentation framework. But the court also said that this authority was “not unbounded”.

Ujjwal Kumar Singh and Anupama Roy have criticised that judgment as a post facto validation of an exceptional, de novo revision process that may place new boundaries around the practical exercise of the right to vote (“Supreme Court and the SIR: An Analysis of Association for Democratic Reforms v. Election Commission of India”, 2026, Social Change, SAGE Publications for the Council for Social Development). Their argument asks what happens when the system for verifying the roll becomes intertwined with documentary regimes that determine who can successfully establish electoral eligibility.

At the October 5 hearing, the Chief Justice orally clarified that the court had not approved “any modified Form 6” and said it would examine who had modified what. The larger issue is whether a later administrative or digital requirement can be traced both to legal authority and to a valid decision of the commission.

Accountability before the damage is done

Judicial review is an important route to accountability, but elections expose its limits. Courts usually act after a decision is challenged, whereas electoral rolls and elections operate to fixed calendars. A voter wrongly kept off a roll needs correction before polling day. A later judgment can clarify the law but cannot restore a vote that could not be cast.

Nor can the Supreme Court become a permanent auditor of the commission’s software, meeting minutes, database permissions, and administrative circulars. The more useful long-term question is whether the commission’s own procedures make responsibility traceable before litigation becomes necessary.

Section 18 of the 2023 Act supplies a rule for resolving disagreement, but it does not itself require public disclosure of Election Commissioners’ votes, reasons, or dissents. The controversy is also about institutional memory. Was an agenda circulated? Were objections recorded? Was there a majority decision? Did implementation match it? If software changed, who approved the specification?

The Election Commission’s September 26 response is relevant here. Apart from defending its actions, it announced independent technical involvement in the ECINET review and prior institutional consideration of new IT modules. These steps do not resolve the petitions, but they recognise that technology and internal procedure are part of electoral governance.

A citizen may never read Article 324 or Section 18 but may encounter their consequences through Form 6, a notice, a deleted entry, or a computer screen that refuses to accept an application. For the voter, that is constitutional theory made practical.

The commission’s independence remains indispensable because governments and parties cannot control the institution regulating their contest for power. Its accountability is equally important because independence gives it room to make choices with direct consequences for political participation.

The Supreme Court can ask the commission to produce the file and show who authorised a disputed decision. A durable system of accountability would make that answer identifiable as a matter of institutional routine. That is the larger challenge the petitions raise: keeping the commission independent enough to protect elections from political power, while ensuring that consequential exercises of its own power remain traceable to law, procedure, and a recognisable institutional decision.

V. Venkatesan is a Contributing Editor at Supreme Court Observer.

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