Former Supreme Court justice Rohinton Fali Nariman warned that India cannot tolerate an election commission that “functions or malfunctions” in a manner that disenfranchises millions of citizens. Speaking at a conference titled “The Constitution and the Common Man” at Rajkumar College in Rajkot, Nariman highlighted the large‑scale removal of voters in West Bengal, questioned recent changes to the appointment process of election commissioners, and urged the Supreme Court to resolve the constitutionality of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
West Bengal’s Special Intensive Revision and massive voter loss
Nariman pointed to the Special Intensive Revision (SIR) of electoral rolls in West Bengal, which he said resulted in the disenfranchisement of roughly 90 lakh (9 million) voters. He noted that despite the magnitude of the issue, the Supreme Court has not stayed the SIR process. Of the disenfranchised voters, about 22 lakh (2.2 million) filed appeals. In the subset of roughly 1 lakh (100,000) appeals that were decided, 93 percent were ruled in favour of the voters, underscoring, he argued, that the original deletions were “completely illegal.”
According to Nariman, the fallout from the West Bengal roll‑cleaning contributed to a shift in power, removing the state government of the day and installing a centre‑aligned administration. He described the episode as “disturbing” and said it exemplifies how the right to vote – the core of India’s democracy – is under “great peril.”
Appointment process under scrutiny
In 2023, the Supreme Court, in the case Anoop Baranwal v. Union of India, issued a provisional order that the Chief Election Commissioner (CEC) be appointed by a committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha (or the leader of the largest opposition party), and the Chief Justice of India. Nariman explained that the government later passed the CEC Act, which removed the Chief Justice from the committee and substituted a Union Cabinet minister nominated by the Prime Minister.
He stressed that while the removal of a CEC follows the same procedure as that for a Supreme Court or High Court judge – a safeguard meant to protect independence – the appointment mechanism remains heavily influenced by the incumbent government. “If appointment of Election Commissioners is in the hands of the Government of the day, the removal process does not add very much to their independence and impartiality,” Nariman said.
Nariman also criticized a recent split decision by a two‑judge Supreme Court bench that addressed challenges to the appointment process. The divided verdict, he argued, allowed the government to continue appointing commissioners under a scheme with “substantial executive influence.” He indicated that the matter now awaits a larger, possibly five‑judge, constitutional bench to determine whether the 2023 Act is consistent with the Constitution.
Further complicating the picture, Nariman cited an Indian Express report that the two other Election Commissioners had objected to several decisions taken by the CEC. Under Section 18 of the 2023 Act, a two‑thirds majority is required for a decision to stand. Nariman questioned why the dissenting commissioners did not invoke this provision, suggesting that because they, too, were appointed by the current government, they were reluctant to oppose the CEC openly.
He described a “patch‑up” among the three commissioners that resulted in a joint statement acknowledging some of the objections and promising to revert to an older form (Form 6). Nariman warned that such internal compromises, he said, “come at the nation’s great detriment” and further jeopardise the fundamental right to vote.
Concluding his remarks, Nariman expressed confidence that the apex court will intervene. He urged the Supreme Court to adopt a composition for the appointment committee that includes the Prime Minister, the Leader of the Opposition, and the Chief Justice or his nominee, thereby ensuring that the most qualified individuals are selected to safeguard the integrity of the electoral process.
“You can’t have an election commission which functions or malfunctions like this,” Nariman asserted, emphasizing that the appointment process is the first “red flag” for the Constitution and the common man. He called on the Supreme Court to act promptly, stating, “I hope the apex Court…steps in immediately and rectifies these things.”
Be First to Comment