EC dissent | Kapil Sibal on what SC must do: ‘Hope those shoulders are broad enough…’

Following an Indian Express investigation into disagreements within the Election Commission (EC) over the Special Intensive Revision (SIR) process, The Federal spoke to Kapil Sibal, senior advocate and Rajya Sabha MP, about the role of the Supreme Court, the electoral rolls, and the questions surrounding the EC’s functioning.

Edited excerpts from the interview:

What should be done now, and what should the Supreme Court do?

It needs to call for all the records from the EC in relation to all the decisions that have been made in the SIR and examine in what manner these decisions have been made. It also needs to examine to what extent the two Election Commissioners, who allegedly penned dissent notes, dissented.

They say they weren’t even aware of the agenda when a meeting was held. So, decisions were allegedly taken without an agenda.

There was obviously the IAS officer, Seema Khanna, the Director General (IT), who was operating the (ECINet) software under the instructions of the CEC, allegedly in a manner to prevent the EROs and DROs from uploading the names of those persons who had the right to vote.

Also read: Form 6 flaws, past polls, other red flags: What EC dissent row has exposed

The power to add a vote and delete a vote has to be with the ERO, not with the app. If you take that power over, then it is inconsistent with the law. Then you have the discretion to delete votes or add votes. And that’s what happened in West Bengal.

And that’s clear now, with the tribunals having decided that 91 to 93 per cent of the deletions were wrong. It cannot be that every BLO was making wrong deletions across West Bengal. So, there has to be a policy framework at the level of the CEC to exclude people.

In order to do that, they must know who are to be excluded. That input must have been given by the political party. The BJP. Which means the BJP was working hand in glove with the EC to direct which person’s name should be deleted.

If in booths with a minority population, 80 or 90 per cent of the names were deleted, that’s even more serious. In other words, there was a communal bias to the act of deletion and there was a majority bias to the act of addition.

All this is unconstitutional. I think the Supreme Court should call for all those documents and find out what the real situation is.

Also read: Who is Gyanesh Kumar, India’s new Chief Election Commissioner

After finding out what the real situation is, to get to the root of the problem, it should set up a commission of inquiry. In the context of the Bengal election, they know what the facts are. In the context of what is happening, they’ll find out as to what happened.

And for past elections — Haryana, Maharashtra, Bihar and, of course, Bengal — the commission of inquiry should have a very broad area of operation, including people whose names were wrongly deleted.

What requires the confidence of the people for this democracy to survive is the Supreme Court and the high courts. If these institutions lose confidence, then there is very little hope for democracy in future.

Are you suggesting that if one institution loses public confidence, another institution must step up to restore that confidence?

You see, when the EC makes a submission before the SC that this is the procedure we are following, these are the notices that we have given, these are all valid, the court assumes that such an institution, with high constitutional authority, would not be deceiving the court. It assumes that it would be diligent and that whatever submissions it is making are consistent with the facts.

Also read: Why 2026 Assembly polls were about Opposition vs BJP plus CEC Gyanesh Kumar

That’s the normal assumption.

The Supreme Court has dealt with SIR matters before and has appointed judicial officers. What do the results of those exercises tell us?

Ultimately, they didn’t realise that it was going to take 14, 20 or 40 years to complete that exercise. But whatever little results have emerged from that have shown that, in fact, there were mass deletions, wrongfully done.

So, the pattern is quite clear, as I mentioned.

The motives behind these matters were put before the Supreme Court. Why, then, does the court tend to believe the Election Commission?

I have also represented the EC for many years. At that point in time, I, as a lawyer, never made a submission — I was instructed never to make a submission — which brings down the integrity of the institution in any way. There have been many such lawyers in the past who have discharged their duties with great integrity.

Now, I don’t blame the lawyer here. But if the lawyer thinks he is not told the truth, he will stand up and say everything is being done properly.

Also read: ‘Gyanesh Kumar biggest anti-national’: CJP seeks CEC’s resignation, has 2 more demands

At that time, the EC never used to play around with democracy in this fashion.

So, are you saying the Supreme Court agreed with the SIR exercise based on an assumption that the EC would be speaking the truth? They may have supported the EC in the past in the SIR exercise. Now, in light of this news report and also the notes of the Election Commission, they must take a very strong view.

The facts have been emerging from time to time. In the past, people were aware that the voters’ list was being manipulated and people were being denied the right to vote.

People were aware because the person who has the right to vote is not allowed to do so knows it and talks to other people. This, in turn, reaches the rest of the country.

So, everybody knew what the EC was doing. But the Supreme Court was somehow believing what the EC was saying to them.

Now, it’s all turned out to be false. Now, it’s a test for the Supreme Court.

They must now make sure that this loss of confidence in the institution is restored. And the only way to restore it is what I suggested: A commission of inquiry and calling for the records.

Wouldn’t sealing and examining all these records be a time-consuming process?

No, no. Sealing the records is not a time-consuming process. Call for the records.

If the SIR continues, what should happen to it? And what about elections that may be affected by earlier electoral-roll changes?

Of course, there has to be a stay on the present SIR.

Also read: EC SIR row: Situation demands INDIA-plus unity, says MA Baby on phone call with Mamata

The question is whether past elections should be held again or not. If the same kind of manipulation was done in previous electoral processes, then obviously there has to be a real election.

Cases such as defections also create constitutional crises, but by the time the matter reaches court, the political consequences may already have happened. Doesn’t that create a similar problem here?

I agree. That’s why I said the Supreme Court seems to be losing the confidence of the people by not taking these matters seriously. Therefore, they need to do something.

I was debating whether I should personally be a petitioner in the Supreme Court, but then I decided to be one because I knew that democracy was in danger.

It’s not danger a for me. It’s a danger for the people of the country who don’t have the wherewithal that I have to defend myself.

And you know, all of us have let this country down. Me, you, everybody.

Media is not willing to put facts before the people; it is willing to toe the line of those who control the advertisements. You rely on that because your economic prosperity is more important than your love for the nation, love for democracy.

Also read: Petition seeks contempt action against CEC Gyanesh Kumar, alleges violation of SC orders

We don’t do the right thing. The middle class hasn’t done it. The only people who have done the right thing and shown the right way are the Gen Z.

The Indian Express report talks about inconsistencies in the law and the EC’s decisions, but it does not establish that this happened because of political influence. How do you make that connection?

Suppose you are running a channel. Your channel puts up a story. You think that the person who is the head of the channel doesn’t know about it?

So, there is an instruction that you put up this story. Now, that instruction may come from somewhere else also. That somewhere else is what? It’s the politician – rarely of the Opposition, but 99 per cent (chance is that s/he’s) of the ruling party.

So, the stories that are running on channels are essentially stories that are politically beneficial to the ruling party. That’s the failure of the communication channels in this country. Failure of journalism in this country.

Which is why social media has more credibility than the mainstream media today.

But isn’t it only in a court of law that such a political connection can be established with certainty?

That’s obvious. If Form 6 was changed without a notification of the Central Government, who was this changed by? Not the two Election Commissioners. They have objected to it.

Also read: Thomas Isaac targets Gyanesh Kumar, alleges CEC post is ‘reward’ from Modi govt

So, by whom? Only the CEC. And why did he change it? He couldn’t have changed it on his own.

Or the centralisation of the software of the app. Who could have done it?

So, the question is not just the CEC, but whether he was acting on his own or within a system in which he was appointed by the government?

So you are saying that the CEC was clearly not acting of his own volition, but was appointed by the government.

That is why I think the decision by another Bench of the Supreme Court is of great significance when it says: How do you expect somebody appointed by two people of the committee, who are both in government, how do you expect that person not to follow the diktat (of the government).

What, then, should the Supreme Court do now? Should it stop the SIR process and what should happen to elections?

Stop the SIR process first.

If any election is to be held, it has to be held. It should be held on the basis of the 2025 voters’ list, not one prepared after June 25, 2025.

Also read: Gyanesh Kumar faces prosecution plea in SC, Congress demands his removal over SIR

The SIR is obviously flawed. Election cannot be delayed. That’s a constitutional provision.

If there is a five-year term of the Assembly, it can’t be five years and one day.

What should be the role of CEC Gyanesh Kumar, especially given the issue of immunity from prosecution?

That’s part of the 2023 amendment that took place of the 1991 Act. Section 16 of that Act gives all of them immunity.

So, there is immunity from prosecution, but not immunity from an inquiry. Criminal proceedings and prosecution happen later.

There can be an inquiry, a criminal inquiry. An FIR can’t be lodged, but if a court orders a commission of inquiry, then there is no issue.

Should the court ask Gyanesh Kumar to come and explain his role?

It shouldn’t happen. In fact, he should resign immediately. There has to be a stop to this process.

Also read: ‘Turn approver or face trial’: Congress targets CEC Gyanesh Kumar over SIR, 'Mark VIP'

As a lawyer who has represented many cases, including the EC, how much responsibility does the Supreme Court have right now in restoring the balance?

Enormous. I hope those shoulders are broad enough to discharge this responsibility.