Former Supreme Court Justice Rohinton Fali Nariman has raised a constitutional alarm over the functioning and appointment process of the Election Commission of India (ECI), warning that the common man’s fundamental democratic right to vote is “at great peril”.
Speaking at Rajkumar College in Rajkot on October 4 on “The Constitution and the Common Man”, Justice Nariman questioned the independence of the poll panel and urged the Supreme Court to decide at the earliest on the validity of the Chief Election Commissioner and Other Election Commissioners Act, 2023.
“So the first issue I wish to flag today is that the common man today, under our Constitution, and at, if I may say so, at the heart of our Constitution, the heart of our democracy, which is the right to vote, is at great peril,” he said.
His remarks came against the backdrop of reports of large-scale deletion of voters’ names during the Special Intensive Revision (SIR) of electoral rolls in West Bengal. He also referred to reports that the CEC had taken several significant decisions despite objections from the other two Election Commissioners.
“All of you have seen that in the West Bengal election, 90 lakh voters is an astounding figure who were disenfranchised,” he said, questioning why the Supreme Court did not intervene to stay the process.
He said that of the disenfranchised voters, around 22 lakh filed appeals, while only about one lakh appeals had been decided, with 93% reportedly decided in favour of the voters.
“So can you imagine? This was a completely illegal knocking out of the common man, of the citizen of India, so that a government obtains what it wants,” he said.
The retired SC judge said the Constitution’s promise to the common man begins with the right to vote. “The common man became a voter the moment he became an adult. And he voted in there for the government that he chose,” he said.
He explained that Part 15 of the Constitution provides for an Election Commission to ensure that a citizen’s vote is properly translated into the government the voter has chosen. However, he argued that the manner in which Election Commissioners are appointed raises questions about the independence and impartiality of the institution.
The former supreme court justice recalled that the Election Commission originally consisted only of the CEC, who was appointed by the government of the day, subject to a law made by Parliament. Subsequently, two additional Election Commissioners were provided for, bringing the commission to its present three-member structure.
He pointed out that while the CEC enjoys protection from removal except through impeachment in the same manner as a Supreme Court judge, the appointment process remains a crucial concern.
“But the difficulty is, if the appointment is in the hands of the government of the day, then this removal procedure doesn't add very much to independence or impartiality,” Justice Nariman said, describing this as the “first conundrum” confronting the constitutional framework.
He further noted that the other two Election Commissioners are also appointed by the government of the day and can be removed only with the concurrence of the CEC.
Justice Nariman then referred to the Supreme Court’s 2023 intervention concerning appointments to the Election Commission. He said that under Article 324, which governs the appointment of the CEC and other Election Commissioners, the court had suggested a mechanism similar to the appointment process for the
Under that arrangement, he said, a collegium comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India would select an independent and impartial candidate.
However, Parliament subsequently enacted a law in 2023 that altered the composition of the selection mechanism.
“And instead of these three functionaries, there is a prime minister, has his own minister as number two, and then has leader of the opposition. So that again, you are back to square one,” he said.
The former judge noted that the validity of the legislation has now reached the Supreme Court after two judges differed on the issue, with the matter expected to be considered by a larger bench.
He expressed concern that while the constitutional question remains pending, appointments continue to remain substantially in the hands of the government of the day.
He also referred to reports that the two Election Commissioners had voiced objections to decisions being taken by the Chief Election Commissioner on 14 occasions.
Justice Nariman said that under Section 18 of the new law, the two commissioners could have asserted that decisions of the three-member commission should be determined by majority. However, he noted that they did not exercise that option.
“They were also appointees of the present government,” he said, while questioning the institutional safeguards surrounding the commission.
Against this backdrop, Justice Nariman said reports of a subsequent “patch-up” between the three Election Commissioners were also disturbing, particularly where earlier objections were acknowledged, and changes such as reverting to the old Form 6 were proposed.
For Justice Nariman, these developments underline a larger constitutional concern.
He urged the Supreme Court, an institution to which he once belonged, to intervene without delay.
“And I hope that the apex court, an institution to which I once belonged, steps in immediately and rectifies these things. You cannot have an election commission which functions or malfunctions like this,” Justice Nariman said.
Calling the appointment process of Election Commissioners the first major “red flag” concerning the relationship between the Constitution and the common man, he stressed the need for an early constitutional determination.
Justice Nariman concluded by arguing that the appointment mechanism should ensure participation from the Prime Minister, the Leader of the Opposition and the Chief Justice of India or his nominee, so that the most suitable and independent candidate is selected.
“The sooner the Constitution bench decides that you have to have somebody like a prime minister, leader of the opposition, coupled with the chief justice or his nominee, who then picks up the best name to see that votes actually translate into what they're supposed to translate into, happen, the sooner that happens, the better,” he said.