Pradip Dutta Roy

Part I

Of late, the demand for the resignation of Chief Election Commissioner Gyanesh Kumar has stirred considerable controversy in the national capital, Delhi, as well as across the country. Arguments and counterarguments have been put forward from various quarters. At the heart of the controversy lie certain recent measures adopted by the Election Commission, which certainly merit closer scrutiny.

The allegations being levelled against the Election Commission are multifaceted. The issues are complex, and much of the relevant information is not readily available to the public.

However, setting aside political rhetoric, several issues naturally arise that deserve serious examination.

1. The Law Providing Legal Immunity

Section 16 of the Chief Election Commissioner and Other Election Commissioners Act, 2026, provides that no court shall entertain any civil or criminal proceedings against a serving or former Chief Election Commissioner or Election Commissioner in respect of anything done in the discharge of their functions.

The Opposition alleges that this provision was not part of the original draft but was added subsequently and passed without meaningful debate, in the absence of most Opposition MPs.

It is argued that no such legal immunity has ever been granted to the head of any other institution in the country, or even to the President of India, in this form.

Why was such a provision necessary, and to what extent is it constitutionally valid? A case concerning this matter is pending before the Supreme Court, which has already issued notices to the government and other concerned parties seeking an explanation of its justification.

2. Appointment of Election Commissioners

In this matter, however, it would be unfair to blame only the ruling party. Until 2023, the appointment of Election Commissioners was effectively determined by the government’s preference. The government would recommend its preferred candidate for appointment as Chief Election Commissioner, and the President would give formal approval. This was the prevailing arrangement in the absence of a parliamentary law specifically governing the appointment process.

In 2023, while hearing a case on the issue, the Supreme Court passed an interim order directing that appointments be decided by a three-member panel comprising the Prime Minister, the Chief Justice of India and the Leader of the Opposition.

The objective was clearly to safeguard impartiality by ensuring that the ruling party and the Opposition had an equal say in the selection process. The Court stipulated that this arrangement would remain in force until Parliament enacted a law on the subject.

Subsequently, the BJP government passed legislation proposing a different composition for the selection panel: the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister, and the Leader of the Opposition.

Under this arrangement, the government would effectively have the decisive say, given its numerical majority on the panel. This has led to allegations that the impartiality of the appointment process is being compromised.

A case challenging this arrangement is also pending before the Supreme Court.

3. The SIR Controversy: How Was the Decision Taken?

In June 2025, the Election Commission first issued a notification announcing a Special Intensive Revision (SIR) of the electoral rolls in Bihar. The notification was signed by Pawan Dhawan, Secretary of the Election Commission. Subsequently, the Supreme Court upheld the process.

According to a source within the Election Commission, the decision had been taken unanimously by all three Election Commissioners.

However, a report published in The Indian Express stated that Election Commissioner Sukhbir Singh Sandhu had submitted a written cautionary note. In it, he reportedly emphasised the need to ensure that elderly, rural and illiterate voters did not face difficulties during the exercise.

Several questions remain unanswered. When exactly was the joint meeting held to take this decision? Was Sandhu’s note given due consideration during the deliberations? Were the proceedings of the meeting formally recorded?

The Election Commission has not yet provided any clear explanation on these matters, at least in the public domain. Consequently, doubts persist, and it is the Commission’s responsibility to dispel them.

4. The Bihar SIR

Before the revision, Bihar’s electoral rolls contained approximately 7.86 crore voters. In the first list, around 65 lakh names were excluded. Following further scrutiny, another 3.22 lakh names were reportedly removed.

There have been allegations that most of those affected by the subsequent deletions did not receive prior notice.

Approximately 22 lakh new voters were subsequently included through Form 6. Taken together, the number of voters removed from the original electoral roll reportedly stood at around 47.50 lakh.

It must, of course, be remembered that those whose names were removed included people who were absent, deceased, had migrated, or had duplicate registrations in more than one place.

Logical Discrepancies

The concept of logical discrepancies was first applied in Bihar during this electoral roll revision. According to preliminary figures cited by the Supreme Court, the names of approximately 1.36 crore voters had been flagged for such discrepancies.

The principal grounds included:

• Mismatches in the father’s name.
• Discrepancies in the recorded ages of parents.
• An age difference of more than 50 years between parents.
• An age difference of more than 40 years between grandparents, whether paternal or maternal.
• Documents recording more than six children.

Such discrepancies may indeed raise questions about the validity of a voter’s particulars. However, it must be remembered that similar errors can arise in electoral rolls prepared in the past because of clerical mistakes, illiteracy or a lack of awareness among the public.

For example, a person’s name might appear as Ajit Mondal in one document and A. K. Mondal in another, or Mohammed Ali in one record and MD Ali in another. Such variations are not uncommon. Family naming conventions and social practices also vary across regions and communities.

As a result, even people who are perfectly legitimate voters have become entangled in the web of logical discrepancies. Many have been forced to run from one office to another, while some have been unable to obtain old documentary records to establish their credentials. They have consequently faced, and continue to face, immense hardship.

Unmapped Voters

Put simply, the problem is this: you may possess a valid Voter ID card and may have voted in successive elections, yet your name may be classified as unmapped if neither your name nor that of any eligible ancestor can be linked to the electoral roll of 2002.

Suppose, for instance, that you migrated to another state, that no electoral roll was prepared in a particular state in 2002, that your name was misspelt in the old records, or that your name was never entered in the roll at all.

In such circumstances, you may be required to appear at a hearing and produce additional documents to establish your eligibility.

Those classified as unmapped fall into a category distinct from voters flagged for logical discrepancies.

In a 2025 directive, the Election Commission stated that no voter’s name would be deleted without a hearing on claims and objections.

However, among the 47.5 lakh voters reportedly removed in Bihar, how many have so far been given a hearing? How many have been finally excluded? These figures are not readily available. To the best of my knowledge, the Election Commission has not provided a comprehensive account either.

Yet the election has already taken place.

5. The West Bengal Electoral Roll

Ahead of the West Bengal elections, the Election Commission once again decided to revise the electoral rolls through the SIR process.

Approximately 90 lakh names were excluded in the initial list, of whom around 38 lakh were classified as unmapped. Following successive rounds of scrutiny by the Election Commission, the figure came down to approximately 60 lakh.

The Supreme Court then intervened directly in the matter. Around 700 judicial officers from West Bengal and other states were deployed to undertake the verification process. However, before the election, appeals relating to only 1,607 cases had been disposed of. The remaining affected voters were unable to cast their votes.

In this context, a remark by Supreme Court Justice Joymalya Bagchi deserves mention. He reportedly observed that these voters had been unable to vote on that occasion, but what of it? They could vote in the next election.

Needless to say, this remark generated considerable controversy at both the state and national levels.

According to sources within the Election Commission, following scrutiny by the tribunals, approximately 27 lakh voters were ultimately excluded from the electoral rolls. They were still entitled to apply for inclusion, and many did so.

By the available figures, around 22 lakh applications for inclusion have since been filed. However, a further 16 lakh appeals have reportedly been registered opposing their inclusion.

This is where another troubling question arises: who filed these 16 lakh objections against the inclusion of voters?

The matter remains unclear. Some say the appeals were filed by the Chief Electoral Officer of West Bengal; others attribute them to an Additional Chief Electoral Officer. Yet another explanation is that they were generated and submitted through the Election Commission’s automated system.

The Election Commission certainly has the authority to challenge the inclusion of a person it suspects to be an ineligible or fraudulent voter. However, it must be remembered that the number involved here is not one or two thousand, but 16 lakh.

According to a report in The Indian Express, Commissioner Sandhu had raised questions about who had filed these objections to the inclusion of voters but did not receive a satisfactory answer.

With 22 lakh applications seeking inclusion and 16 lakh opposing it, the total number of appeals and objections in West Bengal has reached approximately 38 lakh.

How long will it take to dispose of all these claims and objections? Even the tribunal judges appear uncertain. Some have reportedly suggested that the process could take twelve years, while others have spoken of a century.

The question is: what will be the status of these voters until their cases are finally decided?

At a public rally, the Chief Minister of West Bengal reportedly declared that these people were not Indian citizens. Whether such a statement is justified when the applications of the people concerned are still pending before tribunals is certainly a matter for serious reflection.

There are also wider concerns. These people might be deprived of government benefits, including ration supplies, the Annapurna Yojana and Indira Awas benefits. Their access to government water supply might even be cut off. In short, there is a risk that they could be reduced to the status of second-class citizens.

It is worth noting that, according to unverified sources, approximately six lakh of the 27 lakh excluded voters belong to the Matua community. These are Hindus who had sought refuge in India after being displaced from Bangladesh.

Some may have applied for citizenship under the Citizenship Amendment Act (CAA), but the number who have actually obtained citizenship under the Act and subsequently managed to secure inclusion in the electoral rolls remains unknown.

One might reasonably suspect that the number is very small, given the complexity and time-consuming nature of the citizenship process under the CAA.

6. Form 6

The Election Commission prescribes Form 6 for the inclusion of new voters who have recently become eligible to vote. Until now, applicants were required to provide basic information, such as their name, age and address, along with documentary proof of identity and residence and a written declaration.

During the West Bengal election process, an annexure was reportedly attached to this form for the first time. Under this additional requirement, applicants seeking inclusion in the electoral rolls had to provide details establishing that their father or another ancestor was listed in the electoral roll of 2002.

It emerged that the online form could not be submitted without completing this annexure.

According to a report in The Indian Express, the two other Election Commissioners, Sukhbir Singh Sandhu and Vivek Joshi, had objected to this change. They reportedly argued that Form 6 and Form 8 are prescribed under the law for electoral registration and for the correction and modification of electoral particulars. Therefore, no changes could lawfully be made to these forms without first amending the Registration of Electors Rules, 1960.

Despite these objections, the annexure was not withdrawn.

Following the controversy, the Election Commission issued a statement claiming that the changes to Form 6 had been made in accordance with the Supreme Court’s directions.

Subsequently, however, Supreme Court judges reportedly contradicted this claim on two occasions. They stated that the change had not been introduced before the Bihar elections and that they had never even seen the annexure in question.

(To be concluded in the next instalment)

The views expressed are the author’s personal opinions. The author is an advocate practising at the Gauhati High Court.