Justice Rohinton Fali Nariman, former Supreme Court judge, expressed serious reservations over the functioning of the Election Commission of India, in the light of the massive disenfranchisement of voters during the Special Intensive Revision (SIR) of electoral rolls, and the reports which suggested that several crucial decisions were taken by the Chief Election Commissioner, ignoring the objections of the other two Election Commissioners.

"You can't have an election commission which functions or malfunctions like this," he said. He lamented that the disenfranchisement of 90 lakh voters in West Bengal had not moved the Supreme Court sufficiently to stay the Special Intensive Revision (SIR) of electoral rolls.

Justice Nariman also described leaving the appointment of Election Commissioners entirely in the hands of the government of the day as a "red flag", warning that it had put the right to vote at great peril. He stressed that the Supreme Court must decide the validity of the Chief Election Commissioner and Other Election Commissioners Act (CEC Act) at the earliest.

He further expressed disappointment over the Supreme Court's two-judge bench delivering a split verdict on the challenge to the appointment process of the Chief Election Commissioner and Election Commissioners, saying that it had allowed the government to continue making appointments under a process involving substantial executive influence.

Justice Nariman was speaking on 'The Constitution and the Common Man' at the Rajkumar College, Rajkot.

He recalled that in Anoop Baranwal v. Union of India(2023), the Supreme Court, as a pro tem measure, ordered that the CEC shall be appointed by a Committee consisting of 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. But soon the government enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which removed the CJI from the Committee and added a Union Cabinet Minister nominated by the Prime Minister instead.

He pointed out that the Chief Election Commissioner can be removed only in the manner of a Judge of the Supreme Court/High Court, so that their tenure is protected. This was a measure to guard their independence. However, he added :

"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."

He said: "Now, the unfortunate part is that all this came before the Court very recently. Two learned judges differed, 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 or not good law. But meanwhile, these appointments continue only in the hands of the government of the day. Now, we saw the danger of this happening very recently. All of you have seen that in the West Bengal elections, 90 lakh voters were disenfranchised; that is an astounding figure. 90 lakh voters getting disenfranchised did not somehow move the Supreme Court enough to stay this. Out of those who were disenfranchised, some 22 lakh voters actually filed appeals. The others must be people who don't have the wherewithal or access to justice. And of these 22 lakh voters, some 1 lakh voter appeals were decided 93% in favour of the voters. So, you can imagine this was completely illegal, knocking out of the common man, the citizen of India in order that a government obtains what it wants. And in West Bengal, we saw, it ousted the Government of the day and brought in the Government of the Centre .Now, these are very very disturbing things that are happening in our country today."

He further referred to the Indian Express's report that the two Election Commissioners had objected to some of the decisions taken by the CEC. He questioned why, if the two members objected to the CEC's decision, they didn't press their rights under Section 18 of the 2023 Act, which allowed the decision of the 2/3rd majority to prevail within the ECI.

"They didn't do that [because] they were also appointees of the present government. So, what do we have today? Today's newspaper tells us that there is some patch-up between these three gentlemen to the nation's great detriment, where they have come out with some common statement saying, yes, some of the objections you people took seem to be correct. We will revert to the old form 6, so and so forth....So, the common man today under our Constitution and, if I may say so, the heart of the Constitution and the heart of the democracy, which is the right to vote, is at great peril."

Justice Nariman concluded by saying that he hopes and trusts that the Supreme Court will rise up to the occasion. "I hope the apex Court and the institution to which I once belonged steps in immediately and rectify these things. You can't have an election commission which functions or malfunctions like this. So the first important red flag qua the Constitution and the Common Man is the appointment process of Election Commisisoners. 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 names in order to see that votes actually translate into what they were supposed to translate into happens."