‘Right to vote in great peril’: Justice Nariman flags executive influence over Election Commission

Former Supreme Court judge Justice Rohinton Fali Nariman has expressed serious concern over the functioning and independence of the Election Commission of India, saying the right to vote — which he described as being at the heart of the Constitution and democracy — was “in great peril”.

Justice Nariman raised concerns over large-scale exclusion of voters from electoral rolls as well as what he described as excessive executive influence over the process of appointing Election Commissioners. He urged the Supreme Court to intervene and ensure that the institution entrusted with conducting elections remained independent.

He made the remarks during a Centenary Oration on “The Constitution and the Common Man”, delivered on September 27 at Rajkumar College in Rajkot.

‘Right to vote in peril’

Justice Nariman said the constitutional promise of democracy ultimately depended on the ability of ordinary citizens to exercise their franchise.

“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 in great peril,” he said.

Referring to the Special Intensive Revision of electoral rolls in West Bengal, the former judge cited figures showing that around 90 lakh voters had been excluded. He said around 22 lakh affected citizens had filed appeals and that, among approximately 1 lakh appeals decided, 93% had gone in favour of the excluded voters.

Justice Nariman described the figures as deeply troubling and criticised the scale of the exclusions. His remarks represented his assessment of the revision exercise and were not a judicial finding against the Election Commission.

Appointment process questioned

Justice Nariman also questioned the present system for appointing the Chief Election Commissioner and Election Commissioners, pointing to the changes made by Parliament following the Supreme Court’s 2023 judgment in the Anoop Baranwal case.

In that judgment, the Supreme Court had put in place an interim selection mechanism comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India until Parliament enacted a law governing appointments.

Parliament subsequently enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. Under the legislation, the selection committee comprises the Prime Minister, the Leader of the Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister.

The Chief Justice of India is therefore not part of the statutory selection committee.

Justice Nariman argued that the arrangement restored significant executive influence over the selection process. “So that again, you are back to square one,” he said.

Calls it a ‘red flag’

The former judge described the appointment mechanism as an important constitutional “red flag”, arguing that the independence of the poll body was essential for citizens’ votes to translate meaningfully into electoral outcomes.

He called for a selection process in which the executive did not have a dominant role and referred to the earlier arrangement involving the Prime Minister, Leader of the Opposition and Chief Justice of India or the CJI’s nominee.

The constitutional validity of provisions of the 2023 law governing appointments has been challenged before the Supreme Court. A two-judge Bench recently delivered a split verdict on whether questions concerning the legislation should be referred to a larger Constitution Bench.

Differences within EC

Justice Nariman also referred to reports that Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi had raised objections on 14 occasions to decisions attributed to Chief Election Commissioner Gyanesh Kumar.

A petition pending before the Supreme Court has separately alleged that certain decisions were taken in the name of the Election Commission without the approval of the other two Election Commissioners. The allegations are before the court and have not been finally adjudicated.

Under Section 18 of the 2023 Act, Election Commission business should, as far as possible, be conducted unanimously. Where the Chief Election Commissioner and Election Commissioners differ, the matter is to be decided according to the majority opinion.

Justice Nariman questioned why the majority mechanism had not been invoked if both Election Commissioners disagreed with particular decisions.

‘Supreme Court must step in’

Against this backdrop, Justice Nariman urged the Supreme Court to address questions surrounding the Election Commission’s independence and functioning.

He said he hoped the institution of which he was once a member would “step in immediately” and rectify the situation, stressing the importance of public confidence in the electoral process.

“You cannot have an Election Commission which functions or malfunctions” in such a manner, he said while calling for an independent appointments mechanism.

The remarks come amid heightened scrutiny of electoral-roll revisions and the Election Commission’s internal decision-making. The Supreme Court is also dealing with separate proceedings concerning the functioning of the poll body and challenges arising from the SIR exercise.

Justice Nariman’s intervention centred on the larger constitutional principle that the Election Commission must remain sufficiently independent of the government of the day. He argued that protecting that institutional independence was inseparable from safeguarding the ordinary citizen’s right to vote.