new delhi, Oct. 6 -- The Supreme Court on Monday declined to pass an interim order restraining Chief Election Commissioner (CEC) Gyanesh Kumar from functioning over allegations that he took several decisions unilaterally despite objections from the two other election commissioners (ECs), saying it could not proceed on "assumptions" without first verifying the facts. A bench, comprising Chief Justice of India Surya Kant and justices Joymalya Bagchi and V Mohana, issued notice to the Election Commission of India, the Union government, the CEC and two ECs, on a petition filed by social activist Rakesh Kumar Singh, while making it clear that any decision found to have been taken contrary to the statutory requirement governing the functioning of the poll panel could subsequently be injuncted. Senior advocate Vikas Singh, appearing for the petitioner, sought an immediate suspension of Kumar and alternatively urged the court to direct the Election Commission to take only unanimous decisions until the next hearing. Singh relied on the 1993 amendments to the election law to contend that, as far as possible, decisions of the Commission were required to be taken unanimously. He also referred to the Chief Election Commissioner and Other Election Commissioners Act, 2023, particularly Section 18, which provides for majority decision-making where there is a difference of opinion. "There is a distinction. The unanimity relates to transaction of business and allocation of work, while functioning can be by majority," Singh submitted. But the bench questioned him on what had changed from the 1993 legal position. Singh said the 2023 law had also introduced Section 16, which conferred a level of immunity on the CEC and election commissioners that was "unheard of", including protection extending beyond their tenure. "A protection while in office is understood," the bench observed. Singh, however, pressed for an interim order suspending Kumar immediately, saying the credibility of the Election Commission was at stake. "We are facing a very grave situation. We have been known in the world for conducting free and fair elections but here the CEC's working." he said. The bench, however, cautioned against acting on allegations before receiving the ECI's response. "Let us not have an authentic information about the averments made by you," it said. When Singh pressed for immediate intervention, saying "the country will burn" without an interim order, the bench responded that it could always annul a decision subsequently if it was found to be unlawful. Singh then proposed that, until the matter was heard next, the three members of the Commission should be required to take only unanimous decisions. The bench pointed to Section 18 of the 2023 Act and said the statutory scheme itself contemplated unanimity where possible and majority decision-making in case of disagreement. The bench also refused to proceed merely on the basis of reports in the media. "You have come here on the basis of a news report, which can be 100% correct, partially correct or partially incorrect. We cannot pass any order on the basis of a newspaper report," the bench said. "If correctional requirements are there, we can issue those orders in future. We cannot pass any orders on the basis of any presumption. We are calling upon all ECs and they will present all facts before us," it added. The bench said the Election Commission was bound by the statutory requirements governing its functioning and warned that if the court found that the law had not been followed, it would have the power to intervene. "There is a mandatory law and we will expect them to follow them. If we find they have not followed the law, our powers are known to everyone," it said. Singh argued the court could not undo an election or an elected government later and therefore needed to intervene immediately. The bench said it would first issue notice and examine whether decisions had been taken in accordance with Section 18. "If we find out some decisions were taken either unanimously or without majority, as provided under Section 18, we will injunct those decisions and say these decisions cannot be implemented," it added. When Singh said several of the disputed decisions related to the ongoing SIR of electoral rolls and had allegedly been taken unilaterally, the bench cautioned against assuming what the factual position was. "We cannot put the cart before the horse. You want us to assume all these decisions were unilateral. We are issuing notices and they will respond. We expect them to respond to the notice and respond fairly," it said....