Mass Scale Disenfranchisement of Voters Imperils Constitution: Justice Rohinton F. Nariman and Justice Bhuyan

TWO SUPREME COURT JUDGES, one former and one incumbent, have spoken out and raised concerns regarding the Election Commission’s independence and disenfranchisement of citizens caused by the Special Intensive Revision (‘SIR’). On September 27,  Justice Rohinton F. Nariman (Retd.) delivered the lecture ‘The Constitution and the Common Man’ at Rajkumar College, Rajkot. While breaking down how the Constitution protects the common man through voting rights he said, “Common man today under our constitution, and the heart of our constitution, the heart of our democracy which is the right to vote is at great peril.” He expressed hope for immediate intervention by the Apex Court. 

On October 4, Justice Ujjal Bhuyan while speaking at 19th NALSAR Justice B.R. Sawhny Memorial Moot Court Competition speaking regarding the disenfranchisement  of citizens said, “If any process results in disenfranchising millions and millions of Indian citizens, making them second-class citizens in their own country, in the sense of being citizens without a voting right, such a process is intrinsically arbitrary. No amount of whataboutery can justify it. It strikes at the very heart of the constitution.” 

Following are the selected excerpts of their speeches:

Justice Rohinton Nariman (Retd.): 

The election commission originally consisted only of the Chief Election Commissioner. He was to be appointed by the government of the day subject to a law made by parliament. This is very important. And later laws added two more commissioners so that we have three commissioners as of date. This Chief Election Commissioner had a fixed tenure of five years, could not be removed save by impeachment in the same manner as a Supreme Court judge, which meant that you required a two-third majority in both houses present and voting in order to get rid of it. So it becomes difficult to get rid of. But 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 Chief Election Commissioner’s concurrence. 

Recently, we had in Anoop Baranwal’s case in 2023, the Supreme Court looking into the fact that so many years have passed since the constitution came into force and parliament making no law whatsoever under 324, the appointment of the Chief Election Commissioner and the other election commissioners. So the court suggested, why don’t we take a leaf out of section 4A of the Delhi Special Police Establishment Act, which appoints the director of the CBI and for that director, you require to have a collegium consisting of the Prime Minister of India, Leader of the Opposition and the Chief Justice of India. So the court suggested that for pro tem, until parliament makes a law, we will have these three people who will select somebody who's independent and impartial. 

Now what does parliament do? It's amazing.

Parliament immediately enacts in 2023 itself, an act for the appointment of all these people. And instead of these three functionaries, has a Prime Minister, has his own minister as number two, and then as Leader of the Opposition so that again you are back to square one. 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 has  gone before a bench of probably 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. 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, but disenfranchised. Now, 90 lakh voters getting disenfranchised and didn’t somehow move the Supreme Court enough to stay this. So that is 90 lakh voters were out when the Bengal election took place.

Out of those who were disenfranchised, some 22 lakh voters actually filed appeals. The others have all seemed to have accepted, they 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 1 lakh voter appeals were decided, 93% in favour of the voter.

So can you imagine, this was a completely illegal knocking out … the common man .. the citizen of India, in order that a government obtains what it wants. And the result of the- you saw in- West Bengal was something that upset 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.

Equally disturbing is the fact that we discover now, thanks to the Indian Express, 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 counts. So the two of us prevail over you, Chief Election Commissioner. They didn’t do that. They were also appointees of the present government. 

So 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, an institution to which I once belonged, steps in immediately and rectifies these things. 

You cannot have an Election Commission, which  malfunctions. It’s something amazing. So the first important red flag, where the constitution and the common plan as the constitution is being worked today, is the appointment process of all these election commissioners. And 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, happen. The sooner that happens, the better. 

Justice Ujjal Bhujan 

“Except in the case of a dead man, the name of a voter once enlisted in the electoral roll cannot be deleted without notice and hearing. The UK Supreme Court, in Chester v Secretary of Court for Justice (2013), declared that the right to vote is not a privilege. In a 21st century democracy, the presumption favors inclusion. The position is no different in India. From the persona of an Indian citizen, the right to vote or right to be included in the voters' list cannot be detached. It will be like taking out the soul from the body.

The Indian constitution does not provide for two classes of citizens. One class of citizens with voting rights and the other class of citizens without voting rights. Any process which leads to wholesale disenfranchisement of Indian citizens, making them citizens without voting rights, in my view, would be outrightly violative of Articles 326 and 14 of the Constitution of India.

If any process results in disenfranchising millions and millions of Indian citizens, making them second-class citizens in their own country, in the sense of being citizens without a voting right, such a process is intrinsically arbitrary. No amount of whataboutery can justify it. It strikes at the very heart of the constitution.

And I will go to the extent of saying that it is a negation of the constitutional order which we have adopted based on the constitution of India. Indian citizens' right to vote is intertwined with India's long years of struggle against foreign rule. It is a manifestation of our freedom achieved after so much of struggle and so much of sacrifice.

Article 326 cannot be tinkered with at all No authority can do it. No court can endorse it or condone it. No one is above the constitution.

Justice Frankfurter of the United States expressed the pregnant thought that in a democracy, the highest office is not that of the president but of that being a citizen. He famously declared, and I quote, that democracy is always a beckoning goal, not a safe harbor, for freedom is an unremitting endeavor, never a final achievement. But I ask myself, what is the worth of a citizen without her voting rights? I am reminded of what Nani Palkiwala had said in his convocation address at the University of Madras on September 28, 1979.

Almost five decades ago, he said, freedom cannot be inherited in the bloodstream. Each generation will have to defend it. Each generation will have to fight for it.

Will it survive? Then alone, it can be passed on to the next generation.”

Justice Bhuyan said, “Adoption of universal adult franchise reflects the determined opinion of the Constituent Assembly that years of freedom struggle and the revolt against foreign rule made the adoption of universal adult franchise a natural choice and an essential ingredient of democracy, which we have adopted as the form of governance.”

“Therefore, it was an act of faith for our founding fathers in the common man of India and in his pragmatism and wisdom. It was the first step taken to achieve equality in India.”

“One may be a billionaire, and one may be a rickshaw-puller. Yet both will have their votes, and the value of their votes would be equal. Likewise, a socially high-placed temple priest on the one hand and a person belonging to the lowest strata of the society compelled to work as a manual scavenger have an equal vote with equal value. This is the transformational vision of the Indian Constitution,” he said.