Justice Nariman, a former Supreme Court judge, has said the Election Commission of India cannot be allowed to function as it has during the Special Intensive Revision (SIR) of electoral rolls, and has urged the Supreme Court to decide the challenge to the 2023 law on appointing Election Commissioners at the earliest.
Rajkot: Former Supreme Court judge Justice Rohinton Fali Nariman has expressed serious reservations about the functioning of the Election Commission of India (ECI), pointing to the large-scale removal of voters from the rolls during the Special Intensive Revision (SIR) and to the allegation that the Chief Election Commissioner took crucial decisions over the objections of the other two Election Commissioners.
Speaking on ‘The Constitution and the Common Man’ at Rajkumar College, Justice Nariman said, “You cannot have an election commission which functions or malfunctions like this.” The remarks are a former judge’s views, not findings of any court, and the allegations he referred to are yet to be tested.
On the SIR and West Bengal
Turning to the removal of voters from the rolls in West Bengal, Justice Nariman said:
“Now we saw the danger of this happening very recently. All of you have seen that in the West Bengal election 90 lakh voters, is an astounding figure, were disenfranchised. Now 90 lakh voters getting disenfranchised didn’t somehow move the Supreme Court enough to stay this so that these 90 lakh voters were out when the Bengal election took place.”
He went on to say that most of those removed did not challenge the deletions, and described what happened to the appeals that were filed:
“Out of those who are disenfranchised, some 22 lakh voters actually filed appeals; the others have all seemed to have accepted. There must be poor people. They must be people who don’t have the wherewithal or the access to justice that the others had. And of these 22 lakh voters, some one lakh voter appeals were decided 93% in favour of the voter. So can you imagine, this was a completely illegal knocking out of the common man, of the citizen of India, in order that a government obtains what it wants.”
These are his figures and assessments, and they have not been tested by any court.
The appointment process and the 2023 Act
Justice Nariman traced how the Commission was originally made up of the Chief Election Commissioner alone, appointed by the government of the day subject to a law made by Parliament, with two more Commissioners added later. Recalling Anoop Baranwal v. Union of India (2023), he noted that the Supreme Court had suggested, until Parliament made a law, a committee of the Prime Minister, the Leader of the Opposition and the Chief Justice of India to make the appointments. Parliament then enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which removed the Chief Justice from the committee and added a Union Cabinet Minister nominated by the Prime Minister.
The Chief Election Commissioner can be removed only in the manner of a Supreme Court judge, a protection meant to secure independence. On that, he said:
“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. This is the first conundrum that we face. Second, the two commissioners who are with him are also appointed by the government of the day, and they can only be removed with the Chief Election Commissioner’s concurrence.”
The split verdict and the call for an early ruling
On the challenge to the 2023 Act, Justice Nariman said:
“Now the unfortunate part is that all this came before the court very recently. Two learned judges differ, and the ultimate thing is now that it has gone before a bench, probably of five judges, in order to find out whether this is good law, not good law. But meanwhile these appointments continue only in the hands of the government of the day.”
Calling the appointment process the first red flag for the Constitution and the common man as it is being worked today, he urged the Constitution Bench to decide the question at the earliest:
“The sooner the Constitution Bench decides that you have to have somebody like a Prime Minister, Leader of Opposition, coupled with the Chief Justice or his nominee, who then picks up the best name in order to see that votes actually translate into what they’re supposed to translate into […] The sooner that happens, the better.”
The objections of the other Election Commissioners
Justice Nariman also referred to the objections said to have been recorded by the two other Election Commissioners:
“Equally disturbing is the fact that we discover now […] that the two gentlemen on either side of the Chief Election Commissioner voiced objections to whatever was going on 14 times, and somehow or the other they didn’t press their right under the new Act, Section 18, to say that look, between the three of us it’s the majority vote that comes. So the two of us prevail over you, Chief Election Commissioner. They didn’t do that. They were also appointees of the present government.”
These remarks are his opinion. The Election Commission has said, in a press note approved by the full Commission, that its decisions on the SIR and the Form 6 declaration were taken unanimously.
Concluding this part of his lecture, Justice Nariman said:
“The first issue I wish to flag today is that the common man today under our Constitution and, if I may say so, the heart of our Constitution, the heart of our democracy, which is the right to vote, is at great peril. And I hope that the apex court and the 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.”
Why the remarks matter
The remarks come as the Supreme Court is scheduled to hear, on October 5, petitions challenging decisions allegedly taken by the Chief Election Commissioner during the SIR without the concurrence of the other Election Commissioners, and while the challenge to the 2023 appointment law awaits a larger Bench. The Court has made no finding on the allegations, and the Election Commission’s position is that its decisions were unanimous.
Speaker: Justice Rohinton Fali Nariman, former Judge of the Supreme Court of India
Event: Lecture on ‘The Constitution and the Common Man’, Rajkumar College, Rajkot