Only a forensic audit and a full inquiry can determine their level of administrative culpability in this massive exclusion of voters
‘First Time Since Independence So Many Voters Lost Voting Rights’: Ex-CEC O.P. Rawat on SIR Exercise
The legal plea of ‘just following orders’ (known as the Nuremberg defence) is untenable in modern criminal law. If a subordinate knowingly carries out a criminal order, he is equally liable as the superior who gave the order.
This principle will most likely be tested in the context of some of the Election Commission of India (ECI)’s officials, including its Director General IT, Seema Khanna, and Senior Deputy Election Commissioner, Maneesh Garg.
Trinamool Congress MP Mahua Moitra has filed a police complaint seeking an FIR against Khanna at Parliament Street Police Station in New Delhi. Moitra alleges that Khanna and Chief Election Commissioner Gyanesh Kumar manipulated voter rolls while restricting access to the software (ECINet and ERONet) for the local Electoral Registration Officers (EROs), who are legally authorised to revise the rolls.
Moitra held Khanna’s actions significant in light of the objections raised by Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi. She also questioned Khanna’s complicity in adding a question on parentage/SIR history to the digital version of Form 6 for new voters, despite their objections.
Additionally, Moitra cited the West Bengal Supervisory Controllers Association, which had raised concerns about back-end deletion of voters by the ECI, bypassing EROs and Booth Level Officers (BLOs) with whom the deletion process must originate. Similar allegations have now surfaced in some districts of Odisha — massive deletions in the name of BLOs while they were unaware of them.
Garg figures in a separate Supreme Court proceeding seeking criminal action against him, Kumar, Khanna, and other ECI officers. As senior deputy election commissioner, he holds administrative authority for electoral-roll/SIR operations and co-ordination with state election machinery.
The allegations against him concern centralisation of electoral-roll databases through ECINet/ERONet; restricting the EROs’ ability to operate independently within the software; changes to the digital Form 6; failure to restore eligible voters despite the EROs determining their inclusion, and taking SIR decisions without the concurrence of the other two election commissioners. The petition seeks prosecution of Khanna, Garg, and the CEC, and a forensic audit of ECINet and ERONet.
The strongest argument against them is that the IT architecture was allowed to override or frustrate decisions by the EROs who had statutory authority to decide voter eligibility. Under Section 22 of the Representation of the People Act 1950, correction or deletion of a roll entry is the function of the ERO or Assistant ERO of the constituency. The software was meant to be a channel for the EROs to do their job. Under Khanna, the software, or those with access to it in the IT division, usurped the statutory authority to make such decisions.
This became evident in the case of 97 wrongly deleted voters in Goa. Despite the Goa ERO sending eight emails in seven days asking for access to the software to roll back the deletions, he received no response. The 97 were excluded from the final voters’ list.
Despite repeated warnings, Khanna persisted in maintaining an architecture that restricted the powers Parliament gave to the EROs. The ECI announced a review of the voter-roll software only after public pressure grew following the Indian Express exposé of the objections raised by the two commissioners.
Courts have recognised the role of the EROs in maintaining the rolls. On October 1, the Bombay High Court said “administrative software systems cannot supersede statutory laws”, in a case where the software was unable to process the request of six family members for address change. The Court asked the ECI what in the Act empowered it to delete these names without a hearing.
Another important allegation against Khanna concerns implementation of a change to the online version of Form 6 despite the two commissioners’ objections. An additional declaration is demanded of applicants in the online version whether they or specified relatives appeared in the 2003 rolls. Sandhu and Joshi pointed out that this could not be done legally without amending the Registration of Electors Rules. Sandhu recorded it as “illegal, unauthorised ” and said it would create difficulties for young and would-be first-time voters.
The change was made in July, immediately after the Gen Z anti-Narendra Modi government agitation of June. One cannot claim it was meant to keep younger voters out, but a structural hurdle was definitely created for them. The ECI has indirectly admitted this addition disadvantaged youth by now saying that those left out during or after SIR, including young and first-time voters, can seek inclusion through continuous updating. The digital version of Form 6 has also been removed for states that have already undergone SIR — it remains for others.
Deleting an elector or making registration harder for young voters is no minor matter, at a time when the political preferences of the young are attempting to shape a new politics.
Khanna enters the picture as head of ECI’s IT architecture. The Indian Express investigation claims the IT division developed and implemented new modules and portals without the full commission’s knowledge. A Supreme Court petition alleges the modified Form 6 was implemented on ECINet in July by the CEC, Garg, and Khanna in breach of their official duties. These are only allegations as of now. The apex court will have to decide whether Khanna as head of IT personally ordered the change in Form 6 or acted on patently illegal orders.
Garg’s role in bypassing procedures by centralising software has also come under question. On September 24, Maharashtra’s Chief Electoral Officer wrote to Garg, Khanna, and two other ECI officials asking for four changes to ECINet to restore local officials’ discretion, including greater ability for the EROs to deal with “logical discrepancies”, and to act on their statutory decisions without being limited by the central software. This came after the two commissioners flagged the constraints as illegal. Yet Garg took no remedial measures.
Garg’s role may be more consequential than it seems. While he reported directly to the CEC, he supervised Khanna, who oversaw ECINet/ERONet, the platform used to constrain the EROs’ statutory functioning. Only a forensic audit and a full inquiry can determine their level of administrative culpability in this massive exclusion of voters.
Proving the culpability of CEC Gyanesh Kumar will not be easy. He enjoys absolute immunity from any suit or proceeding in any court or before any authority in respect of anything done in his official capacity. The Opposition also lacks the numbers to impeach him.
Khanna and Garg do not enjoy such immunity. If found guilty of executing unconstitutional orders, they may be held personally liable under the ordinary criminal law for denying a citizen their fundamental right to vote.
https://www.deccanherald.com/opinion/what-about-gyanesh-kumars-backroom-collaborators-4167839
+++++++++++++++++
Anjali Bhardwaj: The Special Intensive Revision Decision the Election Commission Says It Never Made
The media missed the biggest story: How a generation fed on consumerism and hate found its voice
Focus on MPs who have criminal cases, not a 25-year-old: CJP slams Zero FIR
How women protesters became targets after the Jantar Mantar protest
A LEGACY THAT IS BEST FORGOTTEN
‘First Time Since Independence So Many Voters Lost Voting Rights’: Ex-CEC O.P. Rawat on SIR Exercise
