Opposition's Attack on Election Commission Has Gone Beyond "Legitimate Boundaries": Harish Salve

Former Solicitor General Harish Salve on Wednesday criticised the Opposition's protest against Chief Election Commissioner Gyanesh Kumar over the Special Intensive Revision (SIR) of electoral rolls, saying political criticism should not turn constitutional institutions into targets.

"I think the politics is getting a little beyond what its legitimate boundaries are," Salve told ANI. "I can understand criticizing political parties, criticising political opponents, but constitutional institutions should not be made targets of political attacks, and that's exactly what we see is happening today."

Salve questioned reports of differences among the three Election Commissioners over SIR-related decisions. He said the reports did not make clear whether there had been a formal dissent or whether the decisions had been taken together.

"Indian Express published an unsubstantiated, and not even a clear allegation," he said. "Did they decide by mutual agreement, or was it just the Chief Election Commissioner who was going counter to what his colleagues said?"

On how a three-member panel works, he said a member who disagrees would be expected to record the dissent and not allow a decision to be presented as unanimous. "If there are three people on a panel, if I am dissenting, if my colleague is dissenting, and the third person is saying, 'No, this is a unanimous decision,' I will say, 'No, sorry, this is wrong, there's no decision, won't allow this to go through,'" he said.

He said the Commission's press note clarifying that all its decisions were unanimous should have ended the matter. "That should have put an end to all this nonsense," he said.

FORM 6 IS A SEPARATE QUESTION

Salve said the dispute over whether Form 6 has been validly amended is a separate legal issue and should not be mixed up with questions about the Commission's functioning. "It's a separate issue about Form 6, whether Form 6 has been validly amended, not validly amended, etc.," he said.

He described the constitutional position of the Commission as one of equals. "You have co-equal institutions. We have the Legislature, we have the elected Executive, you have the Judiciary, and the Election Commission is co-equal in the sense that in their own area, they are supreme," he said.

If any institution crosses the lines drawn by the Constitution or the law, he said, "the Supreme Court has the last word." If the court finds anything wrong, he added, "they will set aside the orders."

He said the dispute should be settled through constitutional and judicial mechanisms, calling the current campaign "an unfortunate turn in politics" that is "dragging a constitutional institution into the mud."

THE POLITICAL BACKDROP

Opposition parties led by Congress president Mallikarjun Kharge have kept up their campaign against Kumar. After a meeting chaired by Kharge, Opposition leaders planned to march towards Jantar Mantar, and Leader of Opposition Rahul Gandhi repeated the demand for the CEC's resignation.

The Opposition accuses the Commission of irregularities in the SIR. The Commission has rejected the allegations and says its decisions were unanimous.

The row has two strands. The first concerns a new declaration attached to the online Form 6, used to apply for inclusion in the electoral rolls, which asks applicants whether they or their parents were mapped in the previous SIR.

On Monday, the Supreme Court said it had not approved any modified Form 6 and would examine the record to see who had made the changes. It issued notice on a plea seeking prosecution of Kumar and tagged it with a similar challenge.

Rahul Gandhi has said Kumar changed the form "illegally and unilaterally"; the Commission says the declaration was upheld by the court.

The second strand concerns the Indian Express report that Salve referred to. The newspaper reported that Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi had recorded dissent over aspects of the exercise, with Sandhu reportedly describing the Form 6 change as "unauthorised and illegal."

The Commission said in a press note last month that its SIR orders were issued with the unanimous approval of all three commissioners.

The Supreme Court has also referred the challenge to the 2023 law on appointing election commissioners to a five-judge bench, after a split verdict on September 23.

With inputs from ANI