[The Opinionated Lawyer] Free and Fair: Elections and Election Commission

Coincidence struck on September 23^rd, 2026. That morning, a two Judge bench of the Supreme Court placed before the Chief Justice of India the issue on whether a Constitution Bench reference is merited with respect to a challenge to the Chief Election Commissioner and Other Election Commissioners Act, 2023 (2023 Act).

The same day, the country woke up to one of the leading newspapers having published an investigative report which unearthed that the institutional structure of the Election Commission (EC) is fractured by discontent between the Chief Election Commissioner and the other two Election Commissioners. This report revealed that in the past 10 months, the two Election Commissioners objected 14 times to the decisions taken by the Chief Election Commissioner. These decisions were not merely administrative in nature but expressed concerns with the way the ongoing Special Intensive Revision (SIR) is being conducted by the Election Commission; the very body of which they formed an integral part. The coincidences don’t end here.

The same fateful day, an online investigative journalism platform also unearthed the inner workings of the EC which have grave ramifications on the functioning of the Commission, the SIR process and the resultant effect all this has on our democracy. None of these events bode well for our democracy.

Article 324 of our Constitution deals with the ‘Election Commission’, which as per Article 324 (1) is vested with the duty to conduct all elections to the Parliament and the Legislatures. Article 324 (2) deals with the appointment of the Election Commissioner(s). As per Article 324 (2), the appointment of the Election Commissioners shall be “subject to the provisions of any law made in that behalf by Parliament…” It is noteworthy that this provision was not envisaged to be a perfunctory exercise but was supposed to be done in order to ensure that the appointment of Election Commissioner(s) is made in an independent manner; without any executive interference.

The relevance and importance of this Article can be found in the Constituent Assembly Debates. Before Article 324 (Draft Article 289) was introduced before the Assembly, the Fundamental Rights Committee submitted its report stating “it should be recognised that the independence of the elections and the avoidance of any interference by the executive in the elections to the Legislature should be regarded as a fundamental right and provided for in the chapter dealing with Fundamental Rights.” The Assembly agreed that the topic was of fundamental importance but ultimately decided that it be introduced in a separate chapter instead of including it within the Fundamental Rights.

In the above backdrop, Article 324 was introduced, and the conduct of free and fair election was the most important constitutional exercise that the  EC was to perform. The commission was envisaged as being an autonomous and independent body and its commissioners enjoyed the same status as Judges of the Supreme Court.

In 2023, the Supreme Court in Anoop Baranwal v. Union of India, held that the Constitution underscores the importance of free and fair election, free from executive control as a “basic structure” of our Constitution. It was felt that, the absence of any legislation for the appointment of  Election Commissioners created a constitutional vacuum which needed to be addressed. While refusing to grant mandamus directing the Parliament to enact law for the appointment of Election Commissioners, the Supreme Court, as a pro tem measure, created a selection committee which included the Prime Minister, the Leader of Opposition and the Chief Justice of India, with a view to ensure that the appointment procedure of the Election Commissioners does not suffer from partisanship.

On the heel of the constitution of the pro tem committee, the Parliament enacted the above-mentioned 2023 Act, under which the Chief Justice of India was replaced with a ‘Cabinet Minister nominated by the Prime Minister.’ The 2023 Act was challenged in a series of Writ Petitions titled ‘Dr. Jaya Thakur v. Union of India’. On 23.09.2026, on the Centre’s request that the matter be referred to a Constitution Bench of 5 or more judges under Article 145 (3) of the Constitution as it related to a question of constitutional significance, the Supreme Court gave a split verdict. One of the Judges highlighted that not only did the request for reference come after two years of the pendency of the Writ Petitions, but the question regarding the independent appointment of Election Commissioners stood settled in the Anoop Baranwal case and hence the matter did not merit a Constitution Bench reference. Disagreeing with this, the other Judge noted that it was for the first time that the Constitutional validity of the 2023 Act is being subjected to a judicial test, and given that the matter is of constitutional significance and raises substantial questions of law regarding interpretation of the Constitution, therefore a reference to the Constitution Bench would be in order.

Notably, while Anoop Baranwal highlighted the constitutional vacuum that has emerged due to the absence of any legislation governing the appointment of Election Commissioners, it is also important to address why the vacuum got created and whether it was a deliberate omission on the part of the legislature or a conscious decision. Citing Dr. Ambedkar, one of the judges in Jaya Thakur observed that the inaction of the central government over seven decades is deliberate as “…..every dispensation wresting power found it convenient to keep institutions, which the Constitution envisioned to be independent, under their control. To enact a law on the lines empowered by Article 324(2) would have meant freeing the ECI from exclusive executive control and inviting trouble for the ruling regime. To the mind of this Court, this has not been the failing of any one party or one period. A consistent trait of political power, discernible over the decades, has been to preserve leverage over the very body that is meant to judge its claim to power. What is deciphered from the speech of Dr. Ambedkar delivered in Jullundur is this: Dr. Shyama Prasad Mookherjee was heard/read by Dr. Ambedkar as having pointed out, as early as in 1951, that Government servants were helping the ruling party to ensure electoral success and thereby not rendering free and fair elections.”

The same day of the Jaya Thakur’s verdict, the Indian Express published a front-page investigative report on the Election Commission. The report put the functioning of the Election Commission under question and compelled us to believe that the Election Commission is being run solitarily by the Chief Election Commissioner, against the decisions of the other two Election Commissioners. As per the report, there have been sharp disagreements in the way the present SIR is being conducted (which excluded over 13 crore voters), and the unilateral amendments in Form 6 by the Chief Election Commissioner, which the other Election Commissioners have observed in their letters to be “unauthorized and illegal” and must be removed immediately so young, first-time voters are not “harassed.” As per the reports, the two Election Commissioners also questioned the Chief Election Commissioner on the transparency of the ECInet software which has restricted the access of Electoral Registration Officer to the electoral rolls and is a “gradual centralization of the electoral roll database.” Notably, if found to be true, the unanimous decisions of the Chief Election Commissioner are contrary to Section 18 of the 2023 Act, which mandates that the decision of the Election Commission shall be, as far as possible, unanimously decided or otherwise must conform to the majority decision of Election Commissioners.

The above objections of Election Commissioners are not limited to the administrative functions of the Election Commission but pierce at the heart of the electoral process which the makers of our Constitution and the Supreme Court observed to be of fundamental importance.

Asides from the Express, an online platform, The Reporters’ Collective, which is an investigative journalism platform also published its report on how certain section/class of people are getting preferential treatment in the SIR process as their grievance redressal are far quicker and smoother compared to the other class of ‘ordinary citizens.’ The report also contains startling revelations, backed by images and screenshots of how messages were circulated to election officials responsible for conducting the SIR in New Delhi to ensure that VIP voters whose names are featured in the SIR, are given preferential treatment for inserting their names back into the voter rolls while the common man languishes in uncertainty of disenfranchisement.

These reports, when considered alongside what is noted in the observation of one of the Judges in the Jaya Thakur case point towards a systematic fracture of the Election Commission. The Judgment went on to note that the inclusion of leader of opposition in the selection committee is “largely ornamental” as the “collective responsibility doctrine” under Article 75 (3) of the Constitution will preclude the Cabinet Minister from opposing the Prime Minister, who is also her nominator.

All the above, whether the judgments of the Supreme Court or the journalistic reports, lay open the trappings of a flawed Election Commission and an electoral process marred by trust deficit. Pertinently, the questions surrounding the present Chief Election Commissioner’s unilateral decisions strengthen the arguments against the 2023 Act as the present Chief Election Commissioner is the first to be appointed under the new statute.

The makers of the Constitution, despite not including free and fair election in the Fundamental Rights Chapter, considered it a topic of utmost importance. 23 years after the Constitution was adopted, in 1973 the Supreme Court delivered the seminal judgment in Kesavananda Bharti v Union of India, where it held democracy to be a basic feature of the Constitution which cannot be abrogated under any circumstance. It is undeniable that the first step towards democracy is free and fair elections which can only be ensured by an independent Election Commission. In fact, both Anoop Baranwal and Jaya Thakur cases recognize this principle. It is therefore a natural corollary that any compromise on the independence of the Election Commission is really an attack of the basic structure and resultantly an assault on the Constitution.

While the Supreme Court examines whether a Constitution Bench reference is warranted to address the challenges under the 2023 Act, it cannot be glossed over that, for now, the image of the Election Commission is stained with criticism both from within and outside. At present, the appointment procedure of the Election Commissioners looks far away from the constitutional principles that should govern such important appointments. The overpowering veto of the Central Government in the appointment of the Election Commissioners effectively converts the Election Commissioner of India into the Election Commissioner of the “Government of India,” something which former Chief Election Commissioner T.N. Seshan cautioned against.

Moreover, there is still ambiguity on how the Chief Election Commissioner is taking unilateral decisions when the 2023 Act itself mandates all decisions to be taken by a majority. One hopes that the functioning gets back on track before the upcoming critical elections in several key states before the next general elections in 2029. It is important both for the electorate and politicos to feel that the elections are being conducted in a free and fair manner and without executive control.

Incidentally an interesting exchange between the Bench and the Attorney General for India is noted in the recent judgment of Jaya Thakur. One of the Judges queried from the Attorney on whether the minister so nominated to the selection committee would take a stand against the Prime Minister in case of a difference of opinion between the Prime Minister and the Leader of Opposition, to which the response tendered was “probably no.” While the candor of the response was appreciated, the Judge notes that “The presence of likelihood of a ‘no’ is striking enough to colour the perception of the Selection Committee; the probabilities and certainties of the ‘no’ matter little. Thus, the challengers of the law contend, even if the appointments are meritorious, the process does not pass the perception test. The bottom line of the argument runs thus: it would not be a fallacious metaphor if it is said that since the umpire is picked by the captain of one side in a cricket match and his team wins, even if the decisions taken by such umpire are correct, it has the patina of suspicion, for, at the end of the day, the umpire has effectively been chosen by the winning captain.”

At a time when the electoral scales are greatly tilted in one direction, our democracy is not functioning with the vibrancy that our Constitution mandates. Taking a leaf from the above noted extract of the Supreme Court judgment, if the umpire is partisan to one player and there is also no level playing field then the results are bound to be skewed. This in turn deprives the electorate of their real rights of universal adult suffrage and their ability to participate in the great Indian festival of democracy. The only way to ensure free and fair elections is by making sure that Election Commission of India continues to be an independent body and is also seen as being truly independent. Till the clouds of doubts encircling the electoral process are not cleared our democracy continues to be under threat. 

Satvik Varma is a Senior Advocate based in New Delhi.

Invaluable research assistance was provided by Advocates Divya Gyan and Shantanu Parmar