Analysis · the Constitution and the Commission

Five questions that need answers

Where the events of 2023–26 press against the Constitution, election law and the Election Commission's own duties, set against what the Supreme Court has already said. This page is analysis, not legal advice: each question gives the legal anchor, the gap, the ECI's answer, and what would settle it.

1

Did the Commission decide, or one man?

Article 324T.N. Seshan (1995)2023 Act

What the law says

Article 324 vests elections in the Election Commission, a body rather than an office. In T.N. Seshan v. Union of India (1995) the Supreme Court held that a multi-member Commission decides unanimously where possible and otherwise by majority, and warned against its powers resting with one person. The 2023 Act says the same, and the Court repeated it on 5 October 2026.

Where it drifts

Two of the three commissioners recorded at least 14 written objections to orders, appeals and form changes they say were issued without them. If those went ahead over their objection, they may not be decisions of the Commission at all.

The ECI's answer

Differing views are normal deliberation, and every final decision was unanimous.

2

Can the ECI change what it takes to become a voter, without a change in law?

Article 326Article 14Mohinder Singh Gill (1978)Registration of Electors Rules

What the law says

Article 326 gives every adult citizen the vote and allows disqualification only "under any law made by the appropriate Legislature". Form 6 is prescribed by the Registration of Electors Rules, which only the government can amend. In Mohinder Singh Gill the Supreme Court held that the ECI's Article 324 power fills gaps in the law but cannot override it.

Where it drifts

The online Form 6 could not be submitted without a declaration and parents' roll details, which in effect added an eligibility test. Two commissioners said this needed a rule change. The Court said on 5 October that it has not approved any modified Form 6.

The ECI's answer

Form 6 itself is unchanged. The declaration is a separate SIR condition, ordered unanimously and upheld in the May 2026 judgment.

3

Who carries the burden of proof, the citizen or the state?

Article 326Lal Babu Hussein (1995)RP Act 1950

What the law says

In Lal Babu Hussein (1995) the Supreme Court held that people already on the roll are presumed eligible and cannot be removed without notice and a fair hearing. The 1950 Act provides for deletion through objection and inquiry.

Where it drifts

Most SIR deletions happened at the draft stage, for not returning a form or not being found at home, with no individual finding of ineligibility. Unmapped voters had to prove eligibility with documents. Reported deletions fall unevenly: against women in Bihar and Muslims in Bengal's "logical discrepancy" category.

The ECI's answer

The May 2026 judgment rejected the argument that the SIR negates the presumption of citizenship. Anyone excluded can re-apply or appeal, and there is no bias.

4

Who controls the roll: the officer the law names, or central software?

RP Act 1950, s.13BAppeals, s.24

What the law says

Section 13B of the 1950 Act makes the Electoral Registration Officer responsible for preparing each constituency's roll. Inclusion, deletion and appeals all run through that officer and named appellate authorities.

Where it drifts

EROs reportedly lost ERONet powers; central systems generated "logical discrepancy" flags, reportedly using AI; software could not restore some verified voters in Goa; and 16 lakh appeals were filed in the ECI's name in Bengal, allegedly without the state CEO knowing.

The ECI's answer

ECINet improves accuracy and service. Since 26 September it has been under review for compliance with the Acts and Rules.

5

Is the referee independent, and seen to be?

Basic structureArticle 324(5)Anoop Baranwal (2023)Article 19

What the law says

The Supreme Court has held free and fair elections to be part of the Constitution's basic structure. In Anoop Baranwal (2023) it required an independent selection panel until Parliament legislated. Article 324(5) protects the CEC from removal except like a Supreme Court judge.

Where it drifts

The 2023 Act gave the government 2 of 3 seats on the panel and passed with the opposition walked out or suspended. Every current commissioner was chosen under it while the challenge is pending. The ECI narrowed public access to election records and limited how long footage is kept. Removal notices were rejected without debate, and the Court had to step in to protect peaceful protest.

The ECI's and government's answer

Executive selection was the norm for 70 years and the Act is valid law. The records changes protect voter privacy, and the police acted within the law.

The common thread

Every question turns on records the ECI holds but has not published: minutes, deletion data, software rules and appeal authorisations. The Supreme Court is now the only body actively asking for them. Its answers, expected after the ECI files its reply, will settle more of this than any statement from either side.

This page is analysis built on public reporting and the cited judgments. Summaries of older judgments are simplified; read the linked texts before relying on them.