Unanimous on Paper: Why Only the Election Commission's Own Files Can Settle the SIR Dispute

The Missing Shield: Why Article 324 Cannot Keep the Commission's Files Closed The

Constitution protects the internal deliberations of exactly one executive body by name. Article 74(2) says no court may inquire whether and what, advice the Council of Ministers gave the President. Article 324, which creates the Election Commission, has no such clause. That silence is now the most important fact in the SIR litigation.

Two Accounts That Cannot Both Be True On 26 October 2026, Chief Election Commissioner Gyanesh Kumar and Election Commissioners Sukhbir Singh Sandhu and Vivek

Joshi filed a 248-page joint affidavit. It says every order scheduling the SIR across States and Union Territories was passed unanimously. Yet an investigation published on 23 September 2026 documented 14 internal notes in which the two Election Commissioners recorded, over ten months, that they had not been consulted and were told of key SIR steps only after they began.

Both cannot be fully accurate. Either the notes were dissents that a joint affidavit now papers over or they were consultative remarks that never amounted to disagreement over the final decision, which is broadly how the ECI now characterises individual notes.

The court cannot choose between these readings on the basis of affidavits alone. It needs the files. That is why the request by petitioners' counsel Abhishek Manu Singhvi, that the ECI preserve or place before the court its complete SIR records, matters more than any other argument made on 27 October.

Why the Text Allows the Court to Look The rule as written is clear enough.

• Article 324 gives the Commission control over the preparation of electoral rolls and the conduct of elections. It grants power; it does not grant secrecy.
• Section 18 of the 2023 Act requires the Commission's business to be transacted unanimously or, failing that, by majority. Whether this happened is a question of procedure and procedure leaves a paper trail.
• T.N. Seshan v. Union of India (1995) held that the CEC is first among equals, not superior to the other Commissioners. A collegium's decisions are proved by its record, not by a later joint statement.
• Article 326 guarantees adult suffrage. When deletions on the scale debated in this case, cited in the range of about 13.6 crore and contested as higher, are under challenge, the court's duty to protect that right is at its highest. In practice, the ECI and the Union government frame scrutiny as interference. The Solicitor-General urged the court not to become a political forum and the affidavit warns that efforts to restrain the CEC are illegal. But asking a body to keep its records intact does not restrain it. It only ensures that the evidence still exists by the time the court decides.

Where the Line Actually Sits There is a

real limit. A court should not grade the Commission's electoral judgment or second-guess every administrative choice. But checking whether the legally required procedure was followed is classic judicial review. In S.P. Gupta v.

Union of India (1981), the Supreme Court refused to treat official correspondence on judicial appointments as automatically privileged when the public interest demanded disclosure. The same reasoning applies with greater force to a body whose entire legitimacy depends on being trusted.

The independence Article 324 protects is independence from the executive, not immunity from the court. A Commission confident that it acted unanimously gains from producing the files and one that is not confident should not be allowed to rely on a joint affidavit as its defence.