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With high courts questioning some of its decisions, serving judges exhorting against mass disenfranchisement, former ECs/CECs questioning its conduct, the clouds over the ECI become thicker. The Shakespearean platitude, “when sorrows come, they come not single spies, but in battalions”, seems to be playing out, with petitions seeking the suspension of the CEC for his authoritarian ways admitted by the Supreme Court (SC).

As if this wasn’t enough, hearing the petitions on October 5, the Chief Justice of India reportedly observed, “No modified Form 6 has been approved by us”. It is these modifications in Form 6 that one of the ECs termed “illegal and unauthorised” in his letter of August 14.

The ECI’s responses to the report added to its miseries. The first response on September 23 was “I plead not-guilty”, claiming all decisions were unanimous. In its second response of September 26, the ECI climbed down but created confusion by admitting it used two versions of Form 6 for SIR and non-SIR purposes, asserting the SC “upheld” the changes. Soon, the ECI wilted and withdrew the declaration attached to Form 6 as if it was hiding the weapon used in the crime.

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The CJI’s remark has fuelled the fire, with critics calling it a vindication of their allegations of arbitrary, illegal action of the CEC. However, supporters quickly found a shield in para 152 of the SC’s May 27 judgement wherein it observed that Form 6 “sets out a framework of documentation; however, the same is tailored to the process of revision contemplated under Section 21(2) of the RP Act and may not, in all situations, be capable of literal application to an exercise of the present nature. The Commission, therefore, retains a degree of residual authority to formulate an appropriate documentation framework suited to the exigencies of a Special Intensive Revision. Such authority, however, is not unbounded. In devising such a framework, the Commission must remain cognisant of the existing statutory scheme, and any departure therefrom must be informed by a rational nexus to the object sought to be achieved. The formulation of the documentation regime must thus reflect a calibrated balance in drawing from the statutory framework, while adapting it, where necessary, to effectively serve the purpose of ensuring the accuracy and integrity of the electoral roll.”

This is legalese at its ambivalent best. Is the SC merely recognising the ECI’s authority “to formulate”, not approve, an appropriate documentation framework for the SIR? At the same time, is it affirming the guardrails by stating that such authority is not “unbounded”, reminding it of “the existing statutory scheme”? If the ECI was deriving legitimacy from this SC order for the Form 6 changes it unilaterally made, why did the EC, nearly three months after the SC order, call them illegal and unauthorised? Did the ECI examine his objections and reaffirm its belief that the SC had legitimised the changes?

One must try to untie a few knots the ECI has tied itself in and separate the strands in its most controversial decisions in the 75 years of its existence, namely conducting the SIR. Arguably an abrupt, aggressive and ambitious decision, it was largely perceived as unfair, exclusionary and arbitrary. If the ECI wants the people to believe the decision to conduct SIR was unanimous, it must put the minutes of the relevant ECI meeting in the public domain.

The letters revealing the rift within the ECI don’t necessarily oppose the SIR. The ECs apparently referred to the “illegalities” committed in changing Form 6, and denying access to the Electoral Registration Officers to the ECINet, impeding the performance of legally mandated duties. The ECs were already smarting as they felt excluded from the decision-making process, and the ECI neither held meetings for four months, nor circulated the agenda and minutes of meetings for a year. They were understandably perturbed that without their knowledge 16 lakh appeals were filed before the appellate tribunals against inclusion in the “purified” electoral roll of West Bengal. These made the ECI’s functioning questionable.

It is difficult to predict how the current drama will end but there is no doubt that it is tragic for Indian democracy. In its withering away, the once-hallowed institution of the ECI resembles Milton’s Fallen Angels. It has itself to blame for its sorry plight and the opprobrium heaped upon it. The SC may set aside the ECI’s decisions if it finds them illegal but whether that would lead to the CEC/ECs “losing” their paradise will depend on whether a sin against democracy can be punished by a man-made system. Impeachment is politically fraught; the call of the conscience is a far cry.

“Glory lies not in never falling but rising every time you fall”, was a motivational quote inscribed on the walls of my school. I recently learnt it is from Oliver Goldsmith’s The Citizen of the World (1762). Now I realise this applies as much to institutions as to individuals. The walls of many constitutional bodies qualify to have this quotation pasted on them. Let Nirvachan Sadan take the lead.

The writer is a former election commissioner