चुनाव आयोग में आंतरिक असहमति और नियुक्ति नियमों पर संवैधानिक चुनौती

By Inderjit Badhwar

There are controversies that concern a government, a political party or an election. And then there are controversies that force us to look beneath the immediate political dispute at the machinery through which constitutional democracy itself operates. Our cover story belongs to the latter category.

The Election Commission of India occupies an unusual place in the constitutional architecture. Article 324 does not merely create another government department. It entrusts the “superintendence, direction and control” of elections to a constitutional Commission. The reason is fundamental: governments are participants in elections, while the Election Commission is expected to administer the contest impartially.

That distinction makes the Commission’s internal functioning a matter of public constitutional importance.

Our investigation examines reports that Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi recorded objections on multiple occasions over decisions involving voter registration, electoral-roll deletions and restorations, access to electoral databases, changes relating to Form 6 and aspects of the Special Intensive Revision. The Election Commission has rejected the suggestion that these disagreements demonstrate institutional dysfunction, maintaining that differing views and internal checks are part of deliberative decision-making and that decisions of the full Commission were taken according to its established procedure.

That distinction matters. Dissent within a constitutional institution is not, by itself, evidence of illegality. Indeed, disagreement can be a sign that institutional scrutiny is taking place. The more consequential question is procedural: what does the Constitution require of a multi-member Election Commission, and what happens when one member or group of members believes that decisions have not been adequately placed before the Commission?

The Supreme Court’s 1995 decision in TN Seshan vs Union of India remains important here. The Court examined the constitutional structure of a multi-member Election Commission and made clear that election commissioners are members of the Commission, not merely advisers to the chief election commissioner. The judgment also recognised the practical necessity of a mechanism for conducting the Commission’s business.

That history gives today’s controversy a constitutional depth that goes well beyond personalities.

The second—and perhaps even more consequential—question concerns appointments. In 2023, Parliament enacted a law altering the composition of the selection committee for the chief election commissioners and election commissioners, replacing the chief justice of India with a Union cabinet minister nominated by the prime minister. That law is now under constitutional challenge.

On September 23, a Supreme Court bench, comprising Justices Dipankar Datta and Satish Chandra Sharma, split over whether the challenge warranted consideration by a larger Constitution bench. The matter was consequently placed before Chief Justice of India Surya Kant for constitution of an appropriate bench.

Justice Datta’s observation that institutional independence must also be seen to exist captures the deeper democratic problem. A constitutional referee must not merely claim independence; the institutional arrangements surrounding its appointment, functioning and accountability must inspire confidence that independence is real.

This is where the appointment question connects with the functioning question. If the Election Commission is responsible for determining who is entitled to participate in an election, then the credibility of the electoral roll is inseparable from the credibility of the institution maintaining it. And as electoral administration becomes increasingly digital, questions about who can access, modify and audit voter data acquire constitutional significance alongside their technological significance.

The Special Intensive Revision has intensified that debate. The scale of the exercise—reports have put the number of names struck from draft rolls across the country at roughly 13 crore—means that procedures for inclusion, exclusion, appeal and restoration are not administrative details affecting a handful of citizens. They potentially affect the relationship between the individual citizen and the democratic State.

But there is an equally important constitutional caution. The Election Commission possesses substantial powers under Article 324, and the Supreme Court has recognised the breadth of those powers. The existence of disagreement, criticism or even judicial scrutiny does not mean that every administrative decision of the Commission is unlawful. Nor should political disagreement be confused with proof of institutional misconduct.

That is precisely why our cover story this week focuses on process rather than political allegiance.

The larger issue is institutional design. Who appoints the electoral referee? How does a multi-member Commission take decisions? What safeguards ensure that electoral databases remain subject to transparent and auditable procedures? What mechanisms allow errors to be corrected quickly? And, ultimately, what degree of independence must an institution possess when the government in power is itself one of the principal contestants in the election it administers?

These are not questions belonging exclusively to the Opposition or the government. They belong to every voter.

A democracy does not depend only on the existence of elections. It depends on confidence that the rules governing those elections are administered fairly, that the electoral roll is trustworthy, that institutional power is exercised within constitutional limits, and that there are credible avenues of review when questions arise.

The Election Commission is, therefore, more than an election administrator. It is one of the institutional bridges between the citizen’s vote and the legitimacy of government.

That is why the present controversy deserves scrutiny without slogans and without assumptions.

The ultimate test is not whether the Commission is criticised, nor whether its members disagree. The test is whether India’s constitutional system provides sufficient safeguards to ensure that the vote remains the citizen’s instrument of political choice—and that the institution entrusted with protecting it remains worthy of public confidence.

That is the constitutional question before us.

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