ustice Nariman Warns Right to Vote in Great Peril, Slams Election Commission Malfunctioning

Speaking in Rajkot, Justice Rohinton Nariman flagged massive voter disenfranchisement in West Bengal, questioned executive control over Election Commissioner appointments, and urged the Supreme Court to urgently examine the constitutionality of the 2023 CEC appointment law "You Cannot Have an Election Commission That Malfunctions": Justice Nariman Sounds the Constitutional Alarm on India's Endangered Right to Vote Former Supreme Court Judge Rohinton F. Nariman flags mass voter deletion in West Bengal, questions executive grip on Election Commissioner appointments, and calls on the apex court to urgently decide the validity of the 2023 CEC law The right to vote is often described as the lifeblood of a democratic republic. When that right is quietly bled away — not through open constitutional amendment but through administrative machinery — the damage to democratic legitimacy can be irreversible. Former Supreme Court Judge Justice Rohinton Fali Nariman delivered precisely this warning in a powerful address at the Late CA MJ Rindani Centenary Memorial Oration held at Rajkumar College, Rajkot, on September 27, 2026. Speaking on the theme "The Constitution and the Common Man," the distinguished jurist painted a deeply troubling picture of India's electoral landscape, one in which the very institution tasked with safeguarding free and fair elections — the Election Commission of India — is itself at the centre of an unprecedented constitutional crisis. Justice Nariman's remarks carry exceptional weight. He is not merely a retired judge but one of the most intellectually rigorous constitutional minds to have served on the Supreme Court bench. He has also served as the Solicitor General of India. When a jurist of his stature says that the "heart of our democracy is at great peril," the legal community, the political establishment, and every citizen ought to pay close attention. The West Bengal Voter Deletion Crisis: 90 Lakh Disenfranchised At the centre of Justice Nariman's critique lies the Special Intensive Revision (SIR) exercise conducted ahead of the 2026 West Bengal Assembly elections. The numbers are staggering. Approximately 90 lakh voters — nearly 12 per cent of West Bengal's total electorate of roughly 76 million — were deleted from the electoral rolls. Justice Nariman described this as "an astounding figure" and lamented that even the Supreme Court was not moved enough to stay the process before the elections took place. Of the 90 lakh deleted voters, only about 22 lakh managed to file appeals. The remaining millions, as Justice Nariman poignantly observed, "must be poor people, people who don't have the wherewithal or the access to justice that the others had." Among the approximately one lakh appeals that were actually adjudicated, a staggering 93 per cent were decided in favour of the voters — meaning the overwhelming majority of deletions were found to be unjustified. As independently reported by the Times of India, appellate tribunals in West Bengal upheld the deletion of only 8,649 voters out of around 1.2 lakh cases decided. Justice Nariman did not mince words. He called this a "completely illegal knocking out of the common man, of the citizen of India, in order that a government obtains what it wants." He drew a direct line between the mass disenfranchisement and the electoral outcome in West Bengal, noting that the result "upset the government of the day and brought in the government of the state." This observation raises a deeply uncomfortable constitutional question: can an election be considered free and fair when nearly one in eight voters in the state was removed from the rolls through a process later found to be overwhelmingly erroneous? Internal Dissent Within the Election Commission Itself Perhaps equally disturbing was Justice Nariman's reference to reporting by The Indian Express, which revealed that the two Election Commissioners serving alongside the Chief Election Commissioner had formally recorded objections to the SIR process on as many as 14 occasions. Despite these objections, the dissenters did not invoke their right under Section 18 of the new CEC Act, which provides that decisions of the Commission are to be taken by majority vote among its three members. Had the two Commissioners pressed their position, they could have overruled the Chief Election Commissioner on each of those 14 occasions. Justice Nariman found it significant — and troubling — that the two dissenting Commissioners chose not to exercise this statutory right. He noted that they, too, were appointees of the current government, implicitly questioning whether their silence was a product of institutional loyalty overriding constitutional duty. He referred to a subsequent joint statement issued by all three Commissioners acknowledging certain errors and reverting to the old Form 6 process, but dismissed this as a belated and inadequate corrective measure — "a patch-up" that came at "the nation's great detriment." The Appointment Conundrum: From Anoop Baranwal to the 2023 Act Justice Nariman devoted significant attention to what he described as the "first important red flag" for the common man under the Constitution — the process by which Election Commissioners are appointed. He traced the constitutional history with characteristic clarity. Article 324 of the Constitution contemplated that the appointment of the Chief Election Commissioner would be made by the government "subject to a law made by Parliament." For decades, however, no such law was enacted, leaving the appointment entirely within executive discretion. In March 2023, the Supreme Court addressed this vacuum in its landmark decision in Anoop Baranwal v. Union of India. A Constitution Bench observed that the absence of any legislative framework for appointments to the Election Commission was constitutionally untenable. As an interim measure, the Court directed that a selection committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India would make the appointments — borrowing the model used for the appointment of the Director of the CBI under Section 4A of the Delhi Special Police Establishment Act. Parliament responded with remarkable swiftness. Within months, it enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. However, the Act replaced the Chief Justice of India on the selection committee with a Union Cabinet Minister nominated by the Prime Minister. The result, Justice Nariman said with evident dismay, was that "again you are back to square one" — the government of the day effectively controls two out of three seats on the selection panel, rendering the presence of the Leader of the Opposition largely ceremonial. The Split Verdict and the Road to a Constitution Bench The 2023 Act was promptly challenged before the Supreme Court. When the matter came up for hearing, a two-judge bench comprising Justice Dipankar Datta and Justice Satish Chandra Sharma delivered a split verdict. Justice Datta took the view that the existing bench could decide the case by simply applying the principles already settled in Anoop Baranwal, and made notable prima facie observations — including that a Cabinet Minister bound by collective responsibility "cannot be expected to defy his own nominator," making the Leader of the Opposition's role on the committee "largely ornamental." Justice Sharma, on the other hand, held that the challenge must be referred to a Constitution Bench of at least five judges since the constitutional validity of the 2023 Act was being examined for the first time. The matter has now been referred to the Chief Justice of India for the constitution of a larger bench. Justice Nariman urged that this process be expedited. "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," he said. A Broader Constitutional Alarm Justice Nariman's Rajkot speech did not exist in isolation. On the same day, sitting Supreme Court Justice Ujjal Bhuyan, speaking at the 19th NALSAR BRS Moot Court Competition in Hyderabad, separately warned that any process that disenfranchises millions of citizens and renders them "second-class citizens in their own country" is "intrinsically arbitrary" and "strikes at the very heart of the Constitution." Meanwhile, a petition seeking the suspension of Chief Election Commissioner Gyanesh Kumar over alleged unilateral decision-making was pending before the Supreme Court, which declined to pass an interim order but sought the Election Commission's response. The convergence of these judicial voices — one from the retired bench, one from the sitting bench — at the same moment underscores the gravity of the institutional crisis confronting India's electoral system. It is no longer merely a matter of political opposition alleging bias; it is a matter of senior members of the judiciary, past and present, publicly questioning whether the Election Commission can function independently under its current structure. Why This Matters for Every Citizen The constitutional architecture of Indian democracy rests on a simple but profound premise: sovereign power belongs to the people, and it is exercised through the ballot. Every layer of that architecture — from the independence of the Election Commission to the integrity of the voters' list to the impartiality of the appointment process — must function without compromise. When 90 lakh citizens are removed from electoral rolls and 93 per cent of those who manage to challenge their deletion are found to have been wrongfully removed, the system has not merely malfunctioned — it has failed at a fundamental level. Justice Nariman's call is clear. The Supreme Court must treat the constitutional validity of the 2023 CEC appointment law as an urgent matter. The integrity of the appointment process is not an abstract legal question — it determines who guards the gates of democracy itself. Until the Court acts decisively, the warning from Rajkot will echo as both a plea and a prophecy: you cannot have an Election Commission that malfunctions, and a democracy cannot survive if its citizens are silently stripped of the right to vote.