Chief Election Commissioner is not the Election Commission of India

Why in the News

Decisions issued in the name of the Election Commission of India (ECI) without being placed before two of its three Commissioners are prima facie ultra vires, meaning taken beyond the authority the statute confers. The position answers an investigation reporting that two Election Commissioners recorded objections at least 14 times in 10 months to decisions and orders taken without their knowledge. Those objections covered the registration and deletion of voters, the restoration of names, Form 6, appeals in electoral roll cases, and control over the digital architecture of the rolls. Two of three members are a majority of the Commission, so they were not outvoted. The contested point is no longer whether the Special Intensive Revision (SIR) of electoral rolls was wise or fair, but whether the decisions taken in the Commission’s name were decisions of the Commission at all.

How does the Election Commission of India take a decision?

1. Constitutional vesting: Article 324 vests the superintendence, direction and control of elections in the Election Commission of India. The power is conferred on the body, not on its chairman.
2. Unanimity as the statutory norm: Section 18(2) of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 requires all business of the Commission to be transacted unanimously as far as possible.
3. The fallback rule: Where the Chief Election Commissioner and the Election Commissioners differ, the matter “shall be decided according to the opinion of the majority”.
4. Allocation of business: Section 18(1) allows the procedure for the transaction and allocation of business to be regulated only by a unanimous decision. A unilaterally settled allocation cannot supply authority for a unilateral decision.

Why would a bypassed decision be legally vulnerable?

1. The nature of the defect: A substantive decision the law vests in “the Election Commission”, taken in its name without being placed before the Commission, is void for want of authority.
2. No cover from an allocation: Such a decision also lacks cover where no lawfully adopted allocation of business authorised a single member to take it. A letterhead does not supply authority the statute withholds.
3. The governing precedent: T N Seshan vs Union of India (1995) held that the Constitution entrusts elections to the Election Commission and not to an individual. The Court warned that “It would be wrong to project the individual and eclipse the Election Commission.”
4. A majority is not a dissent: The objections did not come from one Commissioner differing with two colleagues. They came from two of three members, which is the number the statute makes decisive.

Which specific decisions are in question?

1. Form 6 alteration: An Election Commissioner recorded in May that Form 6, prescribed under the Registration of Electors Rules, could not be altered by an SIR direction without amending the Rules. The second Commissioner concurred, and the altered form appeared on ECINet regardless.
2. A recorded majority against the change: In August one of them called the change “unauthorised/illegal” and sought its immediate removal. There was not merely an absence of consensus, but a recorded majority view against the change.
3. Centralisation of the roll database: Both Commissioners warned that access to the electoral roll database was being centralised in Delhi. Both sought safeguards, including an independent technical audit.
4. Restoration blocked in Goa: Electoral Registration Officers (EROs), the statutory authorities for additions, deletions and corrections, found 97 people eligible after they produced documents, and the software did not permit their restoration. A computer programme cannot overrule a statutory officer.
5. The West Bengal appeals: Of 38.31 lakh appeals filed before tribunals, 22.21 lakh came from deleted voters seeking restoration. Another 16.10 lakh were reportedly filed by the Commission itself, seeking deletion of voters.
6. Authority for that litigation: An Election Commissioner asked who had authorised appeals “on behalf of ECI”, recording that neither he nor his colleague had been informed.

What would an institutional response require?

1. Disclosure of the decision record: The Commission, meeting as a Commission, should disclose which major SIR decisions were approved unanimously, which were decided by majority, and under what valid allocation any others were issued.
2. Review of the challenged decisions: Every decision the two Commissioners have challenged as lacking approval should be reviewed, and any found to have been taken without lawful authority should be withdrawn.
3. Form 6 restored to the Rules: The form should be brought back into conformity with the statutory Rules that prescribe it.
4. An independent audit of the platform: ECINet should be subjected to an independent technical and legal audit.
5. Restoring the statutory officer’s powers: EROs should be able to exercise the powers Parliament gave them, without a software permission standing between the decision and the roll.
6. Disclosure of litigation authority: The authority under which appeals were filed in the Commission’s name should be placed on record.
7. The forum if the Commission does not act: Where the Commission will not act on its own, the Supreme Court is the only remaining route.

Challenges to collective decision making in the Election Commission

1. The allocation of business is not published: A reader cannot tell from an order whether it was collective, because the allocation under which a member may act alone is not in the public domain. Eg. The disclosure now sought is of which SIR decisions were unanimous, which were by majority, and under what allocation the rest were issued.
   The Fix: Publish the allocation of business and record every substantive decision against it, so authority is visible on the face of the order.
2. No quorum or meeting rule: The statute fixes unanimity and a majority fallback, and prescribes no quorum, no meeting calendar and no record of how a file is circulated. Eg. The objections were written on file across ten months rather than resolved at a sitting of the full Commission.
   The Fix: Frame regulations under Section 18(1) fixing a minimum meeting frequency and requiring each substantive decision to carry the members’ recorded assent.
3. No internal remedy against an invalid decision: A member who holds a decision to be unauthorised has no forum inside the Commission to set it aside, so the dispute leaves the institution. Eg. The two Commissioners approached the Cabinet Secretary when they believed institutional processes had been breached.
   The Fix: Provide that a contested instruction is placed before the full Commission before it takes effect.
4. Asymmetric removal protection: The Chief Election Commissioner can be removed only in the manner of a judge of the Supreme Court, while an Election Commissioner can be removed on the Chief Election Commissioner’s recommendation. Eg. The Tarkunde Committee of 1975 and the Goswami Committee of 1990 both recommended the same protection for every member.
   The Fix: Extend the Chief Election Commissioner’s removal protection to all members through an amendment to Article 324(5).
5. Executive weight in appointments: The 2023 Act placed a Union Cabinet Minister on the three member selection panel in place of the Chief Justice of India, giving the Union two of three votes. Eg. Anoop Baranwal v. Union of India (2023) had set an interim panel of the Prime Minister, the Leader of the Opposition and the Chief Justice of India.
   The Fix: Restore a selector drawn from outside the executive, so the panel cannot be carried by the government of the day alone.

Conclusion

For years the standing question about the Election Commission was whether it is independent of the executive. The question now is whether it is functioning as a Commission at all. A constitutional authority that demands strict compliance with electoral law from nearly a billion voters has to begin by complying with the law that governs itself. What is unresolved is that the only forum able to test a decision taken without the Commission sits outside it, so a defect in collective authority becomes litigation rather than correction.

Schemes and Initiatives for Electoral Administration

1. cVIGIL: A citizen reporting application for Model Code of Conduct violations, with a 100 minute turnaround mandated for the investigating officer.
2. National Voters’ Services Portal: An online route through which an elector can register, modify and confirm their electoral details.
3. Accessible voting measures: Braille enabled elector photo identity cards, free transport for persons with disabilities, and a vote from home facility for senior citizens.
4. Delisting of unrecognised parties: Over 808 registered unrecognised political parties that failed to meet essential conditions were delisted by early 2026, curbing misuse of tax exemptions.

Matching Previous Year Question

“[2026, GS2, 10 marks] Is the right to vote a fundamental right? Discuss the position of the Election Commission of India while undertaking the revision of electoral rolls. Can it also examine the question of citizenship of voters?”