“Not approved by us”: Supreme Court strips the Election Commission’s Form 6 defence and demands a name
By Suresh Unnithan
The Election Commission told the country on 26 September that the Supreme Court had upheld the declaration attached to Form 6. On 5 October the Chief Justice said the court had approved no such thing, and that the record must show who modified the form. The Commission is now answerable in writing for a claim the bench has already declined to accept.
Chief Justice Surya Kant, sitting with Justices Joymalya Bagchi and V. Mohana, was hearing petitions seeking action against Chief Election Commissioner Gyanesh Kumar. He said: “Let’s be very clear. Any modified Form 6 has not been approved by us… Let us also be clear that when the report will be produced, we will like to see who has modified what.” The bench refused to suspend Kumar. It also said it would examine the decisions before it and annul any that were not in accordance with law. An observation in open court is not a decree. It is a rejection of the Commission’s public defence, and it sets the questions the next affidavit must answer.
Press Note No. 120 of 26 September had said: “The declaration attached to Form 6 for SIR has been upheld by the Hon’ble Supreme Court. For non-SIR period, the Forms applicable as per Rules (the Registration of Electors Rules 1960) will be used.” The declaration was added in July 2026 to the online Form 6 on ECINET. An applicant could not proceed without stating whether his or her own name, or that of a parent or grandparent, appeared in the roll of an earlier Special Intensive Revision. The judgment the Commission cites is dated 27 May 2026. It upheld a documentation protocol for the Bihar SIR within the statute. It came before the July insertion. On the Chief Justice’s statement, it did not approve a modified Form 6.
Within hours the Commission repeated the 26 September line in a fact-check, and sources said not a comma of the original form had been altered. That distinction — an extra declaration, not an amended form — is now the only legal ground left. It is also the ground the written submission will have to hold against a press note that used the word “upheld”.
Form 6 is the inclusion application prescribed by the Registration of Electors Rules, 1960, made under Section 28 of the Representation of the People Act, 1950. A change in a prescribed form is a rule of the Central government, laid before Parliament. The Commission administers the roll. It does not amend the Rules. The Indian Express reported on 23 September that Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi had objected, and that Sandhu on 13 August called the insertion unauthorised and illegal and said it must be removed. The 26 September note did not mention the objection. By the end of the month the declaration had been withdrawn where SIR had ended and left in place where it had not.
The legal consequences do not wait for a final order.
The judicial-approval defence is gone in the form the Commission used it. A press note cannot supply an approval the court says it never gave. If the affidavit repeats the sentence of 26 September, it conflicts with the Chief Justice in the same proceeding. If it retreats to the claim that only the May protocol was upheld, the Commission concedes that the September note overstated the judgment. The credibility gap is already on the record.
The court has also asked, in substance, for a name. Since the Commission became a three-member body, its acts are acts of the Commission, not of the Chief Election Commissioner alone. A change that two commissioners called unauthorised, if it was nevertheless put to applicants, is open to the argument that it was never a decision of the Commission. The bench has not made that finding. It has asked for the file that would prove or disprove it. A record that cannot show approval after the August objection points to annulment of the requirement, not to a clarification.
Annulment would reach the roll. The exposed act is the mandatory declaration, not Form 6 itself. Where the portal would not proceed unless the SIR-linkage question was answered, inclusions and objections decided on that answer are vulnerable. Withdrawal in states where SIR has ended limits the field. It does not cure applications already forced through the gate, or the declaration still live where SIR continues. The remedy need not void entire rolls. It can still require the question to be dropped and the claims that turned on it to be reopened. That is a consequence for the electoral college, not a slogan.
The path not taken is part of the same defect. A notified amendment would have gone to the Union government and to Parliament. An ECINET prompt did not. The court is not being asked whether a parental-linkage question is a useful mapping tool. It is being asked whether the Commission could impose it without the only procedure the Act provides for changing the form. Critics read the question as a filter meant to shape the roll, shifting the burden of enrolment onto a revision from the early 2000s. Motive remains an allegation, and it is unproved. The legal point does not need it. An ultra vires condition is ultra vires whether or not a plan is shown. If the court accepts that reading, entries resting on the declaration will have to be revisited.
What the observation is not should be stated plainly. It is not a finding of guilt, and it is not a suspension. Kumar continues, and the court has refused to act on newspaper reports alone. The shelter is procedural. The same bench has kept the petitions alive and tied the next step to the Commission’s papers. Outside that case the exposure is widening. On 4 October, Kerala Home Minister Ramesh Chennithala ordered the Vigilance and Anti-Corruption Bureau to reopen a 2006 inquiry into the Kerala State Transport Project’s MC Road package, then valued at about ₹215 crore, from Kumar’s tenure as state PWD secretary. The file is linked to the suicide in Malaysia of project engineer Lee See Been of the PATI-BEL consortium. A complaint by Congress leader Malayinkeezhu Venugopal alleged that the original inquiry had been compromised. Chennithala said he found prima facie merit, spoke to Chief Minister V. D. Satheesan, and directed a fresh inquiry. The allegations are old and unproved. They are also a state vigilance proceeding against the officer whose Commission must tell the Supreme Court who changed Form 6.
The ruling party’s haste has narrowed the room further. Its defence treated the Chief Justice’s sentence as an opposition point and answered it by citing the note the court had just refused to accept. That associates the party with the September claim. It does not shift the duty. The duty sits with the Commission: to name the author of the change, to show that the change was lawful, and to reconcile a press note of 26 September with a judicial statement of 5 October that the modified form was never approved. Until that reconciliation is on affidavit, the cloud is specific. It is the gap between what the Commission told the public and what the court has said it is prepared to examine — and, if the record fails, to annul.
