Election Commission of India: Internal Dissent, Unanimous Decisions and the Legal Framework

Introduction

The recent debate around the functioning of the Election Commission of India (ECI) has highlighted a core institutional and legal question: how should internal objections by individual Election Commissioners be understood when the Commission publicly records its final decisions as unanimous? The controversy centres on reported notes by Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi relating to electoral-roll administration and the Special Intensive Revision (SIR), and the ECI’s subsequent clarification that all decisions, including those on SIR, were taken unanimously.

This article examines that controversy through the lens of the statutory framework governing the ECI, especially Section 18 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, relevant constitutional principles, and Supreme Court jurisprudence. The aim is to separate political narratives from the legal and institutional issues that actually determine whether the ECI has acted in accordance with law.

What Sparked the Dispute Over the ECI?

An investigative report dated September 23, 2026 alleged that Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi had placed at least 14 written objections on record over roughly ten months. These notes reportedly dealt with multiple aspects of electoral-roll management, including:

  • Registration of new electors
  • Deletion and restoration of names
  • Issues relating to Form 6 and appeals for restoration
  • Security and control over electoral-roll data
  • IT systems and allocation of responsibilities in that context

The political significance of these reports arises from the present structure of the ECI as a three-member body comprising:

  • The Chief Election Commissioner (CEC), and
  • Two Election Commissioners

In such a structure, the combined view of the two Election Commissioners can form a majority over the CEC on any matter that requires a decision of the Commission as a body. However, not every internal note or objection is automatically a “formal difference of opinion” on Commission business in the legal sense. Distinguishing between informal or draft-stage objections and a formal disagreement on a proposal actually placed before the Commission is central to assessing the controversy correctly.

ECI’s Official Response: Dissent During Deliberation, Unanimous Final Orders

On September 23, 2026, the ECI issued a detailed clarification. The key elements of its position were:

  • Written notes, comments, technical suggestions and internal checks are described as standard features of decision-making in a multi-member constitutional institution.
  • Such internal exchanges are said to promote transparency, legal compliance and robustness of processes.
  • The ECI specifically stated that “differing views and observations are a normal part of deliberation in any institution.”
  • Crucially, it asserted that electoral-roll revisions and SIR decisions in the relevant period were finally approved unanimously by the full Commission.

The ECI further contended that highlighting selected internal notes from a ten-month span, without looking at the subsequent approvals and final decisions, offers only a fragment of the institutional record. This raises the central question: Can there be recorded internal objections yet a unanimous final decision on the same subject?

From a legal and institutional standpoint, the answer can be yes. Whether that is true in respect of any particular objection depends on the precise subject of the note, its timing, and how the Commission eventually acted on the issue.

Why Internal Objections and Final Unanimity Can Coexist

Public debate often treated the following two propositions as if they cannot both be true:

  • Two Election Commissioners recorded objections on various issues; and
  • The final decisions of the Commission, including SIR, were unanimous.

But these are not logically inconsistent. Consider a typical three-member decision-making body:

  1. A draft proposal is circulated by one member.
  2. Other members raise concerns or objections about specific provisions, procedures or safeguards.
  3. The draft is revised or reworked in response.
  4. The modified proposal is then placed again before all three members.
  5. All three, including those who raised earlier objections, ultimately approve the revised version.

In such a scenario:

  • There was genuine internal disagreement at an earlier stage.
  • There was a unanimous final decision after deliberation.

The presence of earlier objections does not automatically make the final unanimity artificial, nor does a unanimous final decision erase the existence of those earlier objections. The key legal issue becomes sharper when the allegation shifts from “we disagreed over a draft” to “an action was implemented without the knowledge or prior approval of the full Commission”. At that point, the question becomes whether the action required collective approval under law and whether such approval existed at the time of implementation.

Three Distinct Categories of “Dissent”

The term “dissent” has been used broadly in political reactions to the controversy, but different situations must be carefully distinguished in legal analysis.

1. Inputs During Drafting or Formulation

A Commissioner may comment on or object to:

  • Draft wording of an order
  • Proposed procedures and timelines
  • IT/technology workflows
  • Implementation modalities

when a proposal is still under preparation. After incorporating changes, the revised proposal might be accepted by all three members. This falls squarely within the usual workings of a collegiate body and matches the ECI’s description of internal deliberative processes.

2. Objection to Ongoing Administrative or Operational Acts

In another situation, a Commissioner may object that:

  • A particular officer or unit (for example, an IT division) has acted without obtaining prior Commission approval, or
  • A specific operational measure has been rolled out which, in the Commissioner’s view, ought to have gone before the full Commission first.

Here, the Commissioner may or may not oppose the eventual policy outcome itself. The real concern becomes:

  • Did the nature of that particular action legally require prior consideration and approval of the whole Commission?
  • If yes, was such approval actually taken before the action was executed?

3. Formal Difference of Opinion on Commission Business

This third category is the most clearly recognised in law. If:

  • A matter that does require Commission decision is formally placed before all three, and
  • They differ in their views,

then Section 18 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 lays down how the disagreement is to be resolved: by the opinion of the majority.

Conflating all three categories into a single notion of “dissent” leads to confusion, either exaggerating problems or minimising them, depending on the narrative being advanced.

The 2023 Act structures how the ECI transacts its business. Section 18 is particularly relevant:

  • Section 18(1) allows the Commission, by unanimous decision, to prescribe how it will transact its business and distribute work among the CEC and the Election Commissioners.
  • Section 18(2) states that all business of the Election Commission shall, as far as possible, be transacted unanimously.

At the same time, Parliament expressly recognises that unanimity may not always be attainable.