‘Right To Vote At Great Peril’: Nariman Raises Alarm Over ECI Appointment Process

Former Supreme Court Justice Rohinton Fali Nariman has raised concerns over the functioning and appointment process of the Election Commission of India (ECI), warning that the right to vote is facing serious constitutional concerns. Speaking on “The Constitution and the Common Man” at Rajkumar College in Rajkot, he urged the Supreme Court to decide at the earliest on the validity of the Chief Election Commissioner and Other Election Commissioners Act, 2023.

Nariman’s remarks came in the context of the Special Intensive Revision (SIR) of electoral rolls in West Bengal. He referred to the exclusion of around 90 lakh names from the rolls and said about 22 lakh affected voters had filed appeals. Of roughly one lakh appeals decided at the time, he cited figures indicating that around 93 per cent were decided in favour of the voters challenging their exclusion. He questioned whether the scale of the deletions should have prompted greater judicial intervention.

The former judge also questioned the independence of the ECI in view of the process through which Election Commissioners are appointed. He pointed out that the Chief Election Commissioner has protection against removal except through a process similar to that applicable to a Supreme Court judge, but argued that safeguards on removal have limited value if appointments remain substantially controlled by the government of the day. He described the appointment mechanism as a major constitutional concern.

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Nariman referred to the Supreme Court’s 2023 intervention concerning appointments to the Election Commission and the subsequent legislation passed by Parliament. Under the mechanism he discussed, the selection process had involved the Prime Minister, Leader of the Opposition and Chief Justice of India, while the 2023 law altered the composition of the selection committee. The validity of the law is before the Supreme Court after a two-judge bench delivered differing views, with the issue awaiting consideration by a larger bench.

He also referred to reports that the two Election Commissioners had raised objections to decisions attributed to the Chief Election Commissioner on 14 occasions. Nariman questioned why the two commissioners had not used the majority-decision provision under Section 18 of the 2023 law. He further referred to reports of subsequent differences being resolved and proposals involving changes such as a return to the earlier Form 6, while stressing that the Election Commission’s functioning must preserve public confidence in the electoral process.

Nariman urged the Supreme Court to address the constitutional questions surrounding the appointment process without delay. He argued that the selection mechanism should include the Prime Minister, Leader of the Opposition and the Chief Justice of India or the latter’s nominee, with the objective of ensuring an independent selection process. His remarks come as the ECI’s functioning and the SIR exercise remain under judicial scrutiny, while the Commission has maintained that decisions concerning the revision process were taken unanimously.

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