By Dr. Gyan Pathak
The challenge to the constitutional validity of the Chief Election Commissioner’s (CEC’s) decisions have entered a crucial phase on October 27. The Supreme Court has not only given 10 days time to the petitioners to file their rejoinders to the affidavit filed by the ECI, but also indicated that they would also decide on the issue of preservation of records of the ECI’s decision making process. The case now has advanced to a contested evidentiary and constitutional stage.
When senior Advocate Abhishek Manu Singhvi appearing for Rahul Gandhi submitted before the bench comprising Chief Justice Surya Kant, Justice Joymalya Bagchi, and Justice V Mohana, “This whole issue depends on the decision-making process, consultation, and whether the decision was unanimous or not unanimous. Let file notings etc be preserved,” Solicitor General Tushar Mehta intervened and called it an unfair request. Nevertheless, CJI Kant said, “We are aware of everything, we will decide it.” The case was put for further hearing on November 17, 2026.
What is most important is that the Court did not issue a specific preservation order at this stage. It surprised many, as to why Supreme Court did not issue any specific order though Solicitor General Tushar Mehta’s description of a request to preserve relevant records as “unfair” deserves scrutiny.
In a constitutional dispute over the Election Commission’s decision-making, preserving relevant official records is not inherently unfair to the institution. It is a normal safeguard that can help the Supreme Court establish what happened, who made a decision, what objections were recorded, and whether the proper procedure was followed.
The petitioners are questioning whether the three-member Election Commission actually followed collective decision-making procedures. The ECI’s affidavit insists that the relevant SIR decisions were unanimous. The dispute therefore turns, in part, on what the contemporaneous records show. If both sides say the records support their position, preserving those records should ordinarily help establish the truth.
The petitioners cannot independently access all the Commission’s internal files, communications and electronic approvals. The ECI says urgent approvals may be obtained electronically and formally recorded later. That makes it particularly important to retain the original records, timestamps and subsequent entries so that the sequence of events can be verified.
When the legality of a public institution’s decision-making process is under judicial scrutiny, protecting the integrity of the evidence should be routine, not controversial. That is particularly important when the institution concerned has a constitutional responsibility to maintain public confidence in the electoral process.
Nevertheless, the Court has indicated that it will examine the relevant records and that is important at this stage, though not equivalent to a direction to actually preserving the records until the case is decided.
Another important thing happened on October 27 is the issuance of notice to ECI on a plea by Rajya Sabha MP Dola Sen alleging that changes were made to Form 6 during Bihar’s SIR without Court’s approval. The issue will now be considered alongside the other proceedings.
On October 26, the ECI had filed its counter-affidavit, defending its conduct and rejecting the allegations. Its principal arguments were that decisions were unanimous. The ECI said all three major SIR orders, dated June 24, 2025, October 27, 2025, and May 14, 2026, were approved unanimously.
In its affidavit, ECI also said that there were no unilateral decision-making. It argued that individual commissioners’ observations, queries or objections during file processing do not themselves constitute formal decisions of the Commission.
On Form 6, it said that it was not amended at all. The ECI maintained that only an additional declaration concerning the mapping of voters to earlier electoral rolls had been introduced. It acknowledged that the online presentation could give the impression that Form 6 itself had been amended.
ECI said in its Affidavit that the petitions were legally defective. The Commission argued that the allegations relied heavily on a newspaper report and did not establish grounds for the extraordinary relief being sought.
The ECI also said that the two other Election Commissioners, Sukhbir Singh Sandhu and Vivek Joshi, had written to the Cabinet Secretary about an internal work-allocation order in July 2026, but that order was never implemented.
Senior advocate Menaka Guruswamy, appearing for MP Dola Sen told the bench that ECI had issued a press release stating that the top court had authorised the amended Form 6 for voter registration. She said that ECI has accepted many of the allegations made by Dola Sen in her petition.
Guruswamy pointed out that ECI acknowledged that the way the declaration attached with the Form 6 was presented online, it could be construed as though an amendment to Form 6 had been made. This was done so that applicants would need only a single OTP and e-sign, the ECI affidavit explained.
Senior Advocate Vikas Singh representing one of petitioners requested time to submit rejoinder to the ECI’s affidavit which the court granted.
The Supreme Court was hearing several petitioners involving related but distinct challenges. Rahul Gandhi and other INDIA bloc leaders have alleged large-scale voter deletions and irregularities in SIR. They have sought judicial intervention against the process. Rakesh Kumar Singh has alleged that the CEC exercised powers that constitutionally belong to the Election Commission collectively and seeks to invalidate SIR and related actions. Shailendra Mani Tripathi seeks an independent judicial inquiry or a Special Investigation Team (SIT) into alleged misconduct. Asaduddin Owaisi and other petitioners have challenged aspects of SIR and the legality of the process. Dola Sen has raised a specific challenge concerning alleged changes to Form 6 in Bihar. (IPA Service)
