EC Affidavit to Supreme Court Leaves Key Questions Unanswered

The Election Commission of India has defended the unanimity of its major decisions on the Special Intensive Revision (SIR) of electoral rolls in an affidavit before the Supreme Court. The Commission says its decisions were taken collectively by all three members and argues that individual Commissioners’ notes recording suggestions, objections or questions are part of the consultative process, not decisions in themselves.

However, the affidavit leaves a central issue unresolved: why did Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi repeatedly record that they had not been informed about actions taken in the Commission’s name? An investigation by The Indian Express documented 14 notes written by the two Commissioners over 10 months, many of them after decisions had already been implemented, orders issued or legal proceedings initiated.

The dispute is not simply about whether the Commission eventually approved its decisions unanimously. It concerns whether all three members were adequately informed and consulted before those decisions were carried out. The affidavit explains the Commission’s formal position on decision-making but does not directly account for several instances in which the two Commissioners said they learned of developments after the fact.

What the Election Commission Told the Supreme Court

The affidavit, approved for filing through a unanimous decision of all three Election Commissioners, maintains that the Commission’s major decisions on the SIR process were collective decisions. It distinguishes between formal decisions taken by the institution and individual notes recording questions, observations or recommendations.

Under this argument, a Commissioner’s note does not independently establish that the Commission made a decision or that the institution acted without collective approval. The Commission also outlines corrective measures and procedural arrangements concerning electoral-roll applications, its ECINet software platform and the handling of legal proceedings.

Yet the timing of the notes is central to the controversy. Several were written after an administrative or technical change had already occurred. In those cases, the Commissioners were not simply proposing an alternative before a decision was made; they were recording that they had not been informed about an action already taken.

The petition filed on the basis of the newspaper investigation asks the Supreme Court to examine how the Commission functions. The affidavit is the Commission’s response to those concerns, but its explanation of formal decision-making does not automatically resolve questions about how information was shared or how operational decisions were implemented.

Form 6 Dispute: Why Was the Online Declaration Introduced?

One of the clearest examples concerns Form 6, the statutory application used by citizens seeking inclusion in the electoral roll.

In May, before a change was introduced, Vivek Joshi recorded that Form 6 could not be altered without amending the Registration of Electors Rules, 1960. Sandhu agreed with that position. Nevertheless, a declaration associated with the SIR appeared in the online version of Form 6 in July.

Sandhu subsequently learned about the change through a newspaper report. In August, he described the declaration inserted into the online form as “unauthorised/ illegal”. The episode raised questions about who had approved the change and why it proceeded after two of the three Commissioners had recorded concerns about altering the statutory form.

The Commission’s affidavit draws a distinction between amending Form 6 itself and introducing a separate declaration for the SIR. It acknowledges, however, that the way the declaration appeared online “could be construed as though an amendment of Form 6 had been made”. It also accepts that “certain steps taken by the officers” needed “to be corrected.”

The Commission’s Electoral Rolls Division subsequently decided on October 21 to separate the statutory Form 6 from the SIR declaration in the online application process. That step addresses the presentation of the documents, but the affidavit does not identify who approved the online implementation in July or explain how it proceeded despite the earlier notes.

The distinction matters because a clarification issued after a controversy does not, by itself, establish how the original change was authorised. The affidavit says the declaration “was entered into the online page of Form 6” but does not specify who entered it or describe the approval process that led to its introduction.

ECINet Software and Concerns About Centralised Control

The second major issue involves ECINet, the platform used for electoral-roll functions. The Commission’s affidavit says the Electoral Registration Officer (ERO) remains the statutory authority responsible for the electoral roll. It states that no entry can be added, deleted or modified except through an order of the relevant ERO, with software intended to enable the officer to exercise those legal powers.

The affidavit also describes new safeguards for reviewing the platform’s compliance with the law. These include a committee involving experts from IIT Mumbai and the Indian Institute of Science, Bengaluru, as well as scrutiny of new information-technology modules before they are approved.

These arrangements closely resemble a proposal Joshi made on May 29. In his note, he raised concerns about what he described as “the gradual centralisation of the electoral roll database” and called for an external expert from the IITs to certify that “no one, except the concerned statutory authorities, has credentials to make any change in the database”. Sandhu endorsed the proposal in July.

On August 14, Sandhu recorded that the fate of the two notes “is not known to the undersigned”. The affidavit presents the committee as a Commission decision taken on September 26 and 30, but does not mention the earlier proposal made by Joshi and supported by Sandhu.

The sequence raises a question about the relationship between recommendations made by individual Commissioners and safeguards later adopted by the institution. The affidavit describes the final arrangements, but it does not explain what happened to the earlier recommendations or why the two Commissioners were apparently unaware of their status.

Did the Software Allow Electoral Officers to Exercise Their Legal Powers?

The dispute extends beyond the formal allocation of authority under election law. The two Commissioners also raised concerns about what had already been developed and how the software functioned in practice.

In April, Sandhu recorded that the Information Technology Division had developed “many new modules and portals” without bringing them before the Commission. He said he had learned about these developments “from media only”. In August, he noted reports from field officers who said they could not use the system to carry out actions required by law.

The Commission’s statement that an ERO retains statutory authority establishes its position on legal responsibility. It does not, on its own, answer whether the software available at the time allowed that officer to implement every lawful decision.

This distinction between legal authority and technical capability is important in an electoral system that relies on digital tools. A statutory officer may formally retain decision-making powers, but the practical exercise of those powers can become a separate issue if the software does not support the necessary action.

Goa Voter Deletions Highlight the Implementation Problem

The situation in Goa provides a specific example of the concerns raised about ECINet. The affidavit refers to 97 voters who were left off the final electoral roll. It says 88 of them have since applied for inclusion through Form 6.

That update describes what happened after the deletions, but it does not explain the earlier difficulty reported by election officials. In February, Goa’s Electoral Registration Officers reportedly could not use the software to implement decisions reversing the deletions, despite eight requests from the state election office over seven days for the system to permit the necessary changes.

A Deputy Election Commissioner at the Commission had also recorded that the “IT system cannot block necessary action”. That note directly addressed the relationship between the software and the statutory authority of election officers.

The affidavit’s account of the later applications does not fully resolve why the system prevented the requested corrections in the first place. Nor does the subsequent filing of applications establish whether the original technical restriction was addressed when the officers needed to act.

The Goa episode therefore illustrates the broader issue underlying the ECINet dispute: whether formal assurances about the powers of statutory officers corresponded to the way the platform operated at the time concerns were recorded.

West Bengal Appeals Raise Questions About Authorisation and Oversight

The Commission’s affidavit also addresses appeals against orders restoring voters to the electoral roll in West Bengal. It says the appeals were filed by officers in the office of the state’s Chief Electoral Officer and argues that those officers had authority to act under the Supreme Court’s orders. The affidavit adds that the matters were not brought to the Commission.

Joshi sought information about the appeals after a newspaper report on August 7. His office asked the officer responsible in the state for the factual position. Five days later, Sandhu sent five questions to the same officer, recording that Joshi “told me that he doesn’t have the details”.

The affidavit addresses whether the Commission itself filed the appeals and identifies the officers who filed them. On the question of authorisation, it maintains that the officers had authority under the Supreme Court’s orders.

However, Sandhu’s note records that West Bengal’s Chief Electoral Officer had told him that she also did not have information about the details of the matter. The affidavit now says the appeals were filed by officers from her office, citing a letter dated October 22. It does not reconcile that account with the earlier note.

The scale of the proceedings also remains a concern. The notes raise questions about how a large number of appeals came to be filed on nearly identical grounds, whether individual cases were examined and how the exercise proceeded without the Commission being informed. The affidavit’s explanation of the officers’ authority does not fully address those questions about internal oversight and the flow of information.

These are distinct issues. Whether officers had legal authority to file appeals is not necessarily the same as whether the Commission’s members were informed, whether the state’s chief electoral officer had a clear account of the proceedings or how the appeals were prepared and handled.

July Administrative Order: Why Was the File Not Provided?

Another episode concerns an order issued in July by a senior officer who had been given temporary charge of the Commission’s administration. Within hours of taking charge, the officer issued an order redistributing work among Commission officials.

Joshi’s letter to the Cabinet Secretary states that when he asked the Administration Division for the relevant file, “it was not provided”. The affidavit says the order was never implemented after the two Commissioners issued a joint direction and that their subsequent letters concerned the matter.

That explanation describes what happened after the Commissioners intervened. It does not explain why the administrative order was issued without the Commission’s involvement in the first place, why a member of the Commission was unable to obtain the file or what happened to the officer concerned, whose name is not disclosed in the supplied account.

The episode adds to the distinction between formal institutional authority and the practical access Commissioners had to information about administrative actions taken within the organisation.

Commission Disputes How Internal Notes Reached the Media

The affidavit also states that the Commission “has neither released nor authorised the release of any internal note/ file to any news agency”. This contests the circumstances in which the documents became public, rather than directly disputing the contents of the notes described in the investigation.

The provenance of internal documents and the substance of the concerns they record are separate questions. Establishing whether documents were authorised for release would not, by itself, establish whether the issues raised in them were adequately addressed within the Commission.

What the Supreme Court Will Need to Examine

The affidavit places the Election Commission’s collective position before the Supreme Court. It maintains that major decisions were unanimous and describes corrective measures concerning Form 6, ECINet and other administrative processes. Those measures are relevant to the Commission’s response, but the record also contains specific questions about how decisions were communicated, implemented and monitored.

The Form 6 episode concerns the approval and introduction of an online declaration after two Commissioners had objected to changing the statutory form without a rule amendment. The ECINet dispute concerns whether the software enabled statutory officers to exercise their powers in practice. The Goa case highlights reported technical barriers to correcting voter deletions, while the West Bengal appeals raise questions about authorisation, information-sharing and oversight. The July administrative order adds concerns about access to files and the circumstances in which an order was issued.

Across these episodes, the central issue is not simply whether the Commission eventually reached unanimous decisions. It is whether all members were informed and consulted in a meaningful way before actions were taken in the institution’s name, and whether concerns raised internally were acknowledged and resolved.

The affidavit explains the Commission’s formal understanding of its decision-making process and identifies some corrective steps. But it does not fully account for why several of the notes by Sandhu and Joshi were written only after the relevant actions had occurred, or why some earlier recommendations appear in later arrangements without an explanation of their intervening history.

The Supreme Court’s examination will determine how those explanations and measures stand against the specific concerns raised by the petition. For now, the unanswered questions concern the gap between collective approval as a formal principle and the information available to the Commissioners while decisions and operational changes were being carried out.