On 5 October, the Supreme Court declined to suspend Chief Election Commissioner Gyanesh Kumar without first hearing the Election Commission of India (ECI), and issued notice on two petitions arising from the Special Intensive Revision (SIR) of electoral rolls. The petitions rely on reports that Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi recorded at least 14 objections between October 2025 and August 2026, yet the steps went ahead in the Commission’s name. The bench said the law on collective decision-making is mandatory and that violations would be undone, but that it would not act on newspaper reports alone.
Public debate has since settled into a contest between unanimity and unilateralism, with Section 18 of the Chief Election Commissioner and Other Election Commissioners Act, 2023 treated as a vote-counting rule. It is one. But the dispute may turn on something Section 18 does not answer: who decided.
Section 18 has two limbs. Sub-section (2) says the Commission’s business is to be transacted unanimously as far as possible, and that where the Chief Election Commissioner and the other Commissioners differ, the majority prevails. Sub-section (1) lets the Commission, by unanimous decision, regulate how it transacts business and allocate business among its three members. None of this is new. A five-judge bench upheld the same rule in T.N. Seshan (1995), holding that the Chief Election Commissioner is not superior to the other Commissioners, and the 1991 Act, as amended in 1993 and later replaced by the 2023 law, carried it too.
Two Accounts that Can Both Be True
In its statement of 23 September, the Commission said differing views are a normal part of deliberation, and part of the process before a final decision is taken, and that its decisions over the past year, including those on SIR, were unanimous. The petitioners say recorded objections were brushed aside. Under Section 18(2), these accounts are not necessarily in conflict. A Commissioner who objects and later agrees, or who is outvoted by the other two, has not been overridden in any unlawful sense. The majority rule has been followed.
What the majority rule cannot reach is a matter that never came before the Commission as a question to be decided. Section 18(2) operates when members differ on a matter. If a step is taken by the Chief Election Commissioner alone, or by officials acting on his instructions, there is nothing to count. The step is not unanimous and not by majority. It is simply not the Commission’s decision. Justice Joymalya Bagchi’s remark during the hearing points to this possibility: if the records show a decision was not taken unanimously or by majority, the Court can block it.
The Document That May Decide the Case
Section 18(1) is the key to that third category. Unanimity or majority is the default, but the Commission can, by unanimous decision, assign certain business to individual members. If all three Commissioners once agreed to place, say, the management of roll databases or the Commission’s IT work with the Chief Election Commissioner, steps within that allocation did not have to return to the full Commission. If no such allocation exists, the default applies and the same steps needed collective approval.
The reports behind the petitions point to areas where this matters. Joshi reportedly flagged on file in May the “gradual centralisation” of the electoral roll database, and Sandhu recorded in August that the Director General (IT) had no legal authority to restrict statutory officers’ access. One petition alleges that 16.10 lakh appeals were filed before West Bengal tribunals in the ECI’s name against electors restored by judicial officers, and Sandhu is reported to have objected to their unilateral authorisation. These are allegations, and the Commission has not yet answered them in court. A related dispute, over a work-allocation order that the two Commissioners say reduced their oversight of the IT wing, concerns supervision of officials rather than the division of work among the three Commissioners, and the Commission says the order was never implemented. Each of these raises a question that comes before any argument on merits: under what authority, and by whose decision, was this done? The reply that all final decisions were unanimous does not answer it if the step was never put to the Commission.
The Form 6 controversy shows why the question matters. The two Commissioners reportedly objected that changing the Form 6 declaration required the Centre to amend the Registration of Electors Rules, 1960. In the Bihar SIR judgment of May 2026, the Supreme Court recognised some residual authority in the Commission to adapt documentation for SIR, but said it is not unbounded and needs a rational link to its purpose. Whether the new declaration passes that test is a question of power. Meanwhile, the Commission’s press note of 26 September suggested the Court had upheld the declaration, and the Chief Justice has since said in open court that the Court has approved no modified Form 6 and will want to see, once the record is produced, who modified it. That is a question about authorship, and the Court has already asked it.
Why the Gap Persist
Section 18(1) also explains why this gap is hard to close from within. Procedure can be framed or changed only by unanimous decision, which gives each of the three members a veto. Procedure already adopted may continue to apply, but a Commission whose members are at odds cannot agree on a new way to record who proposed what, who objected and who prevailed. The mechanism meant to organise collective decision-making needs the very consensus whose absence is in dispute. That is a drafting flaw, and it can be repaired only from outside, by Parliament or by directions from the Court in these petitions.
Decisions, not the Persons
The bench asked who would conduct elections if the Chief Election Commissioner were suspended. The Constitution, for its part, speaks only of removal, on the same terms as a Supreme Court judge under Article 324(5), and says nothing about suspension. Accountability here is therefore best pursued at the level of decisions rather than the individual, and the Court has signalled as much by saying it will examine records and, if needed, block decisions.
That approach needs a record that lets the Court sort each of the 14 contested steps into one of three groups: a decision of the Commission, unanimous or by majority; a step taken under a valid unanimous allocation of business; or a step taken under neither. Only the third is clearly unlawful under Section 18, though steps in the first two groups can still be challenged on power. The Court could therefore ask the Commission to file, for each step, the file notings, each Commissioner’s recorded position, and the authority under which it was carried out, together with any Section 18(1) order and its date. Any order voiding a step will also have to say what happens to roll entries already made under it.
The Commission’s own reply will matter as much as the records. The bench has said it expects a clear and transparent response. An answer that says only that the final outcomes were unanimous would leave the central question untouched. One that identifies, step by step, who proposed, who objected and under which allocation the step was carried out would let the Court decide the case on documents rather than on competing press statements.
Going forward, a modest rule would do much of the work: every decision on electoral rolls should carry the recorded position of each Commissioner, and, absent a unanimous allocation order, roll policy should rest with the full Commission. This does not turn the Commission into a court that writes judgments. It supplies the paper trail that any collective body needs in order to be audited at all. Parliament can write it into Section 18 in a single sub-section, without reopening the appointment process.
Anoop Baranwal (2023) asked who should appoint the people who sit on the Commission, and that question is still alive, with the challenge to the 2023 law pending before a larger bench. The present case asks what follows: once Commissioners are in office, who decides, and how can anyone tell? A Commission that cannot show who made its decisions cannot be held to account by courts, by its own members or by voters, however the Chief Election Commissioner is chosen.
