By K Raveendran
The conditions are all ripe for the Supreme Court of India to take a position similar to the doctrine of the ‘basic structure’ of the Constitution. Luckily, the court has before it a case that will warrant such an approach without being blamed for judicial activism.
For, the crisis confronting the Election Commission has moved beyond the familiar boundaries of political controversy. At stake is the credibility of an institution entrusted with protecting the democratic foundations of the republic. When public confidence in the impartiality of the electoral referee begins to erode, the consequences extend far beyond the fortunes of competing political parties. The legitimacy of the democratic process itself comes under question. India has reached a point where the Supreme Court must consider an extraordinary constitutional intervention to protect the institutional independence without which free and fair elections cannot survive.
The ruling establishment may prefer to portray the controversy as another confrontation between the government and an opposition unwilling to accept electoral realities. Such an explanation is politically convenient but constitutionally inadequate. The essential issue is whether the Election Commission continues to command the confidence that an independent constitutional authority must enjoy, and whether existing safeguards are sufficient to protect it against actual or perceived executive influence.
Developments surrounding the Special Intensive Revision of electoral rolls have sharpened these concerns. Questions about voter exclusions, documentary requirements, administrative discretion and internal decision-making have brought the Commission under sustained judicial scrutiny. The Supreme Court has already intervened to protect voters potentially affected by the revision process, while examining whether particular procedures satisfy constitutional and statutory requirements. The Commission maintains that its decisions were lawful, unanimously approved and directed towards ensuring accurate electoral rolls. These competing positions deserve rigorous judicial examination rather than partisan adjudication.
The Supreme Court’s September 2026 decision to place the challenge to the 2023 law governing appointments of Election Commissioners before the Chief Justice for consideration by a larger Constitution Bench provides an opportunity for examining the deeper constitutional problem. The disagreement between the judges over the need for such a reference reflects the complexity of the issues involved. But the underlying question is fundamental: can an institution responsible for supervising elections remain sufficiently independent when the executive enjoys a decisive position in the process of selecting its leadership?
The Constitution’s framers understood that representative government required an electoral authority insulated from ordinary political pressures. Article 324 accordingly vested the superintendence, direction and control of elections in the Election Commission. Yet constitutional independence cannot be secured by a declaration alone. Appointment procedures, security of tenure, operational autonomy, financial arrangements and accountability mechanisms determine whether the constitutional promise becomes an institutional reality.
The Constituent Assembly deliberated within the political and administrative circumstances of a different era. Its members could hardly have anticipated the enormous concentration of political communication, digital surveillance capabilities, sophisticated electoral databases and contemporary techniques of political mobilisation. Nor could they have fully foreseen the challenges posed by a political environment in which the distinction between governmental authority and party advantage can become increasingly difficult to maintain.
This does not diminish the extraordinary constitutional vision of the framers. It reinforces the necessity of interpreting their principles in ways that preserve their relevance. India’s Constitution was never intended to become a static instrument incapable of responding to threats that emerge through changing political circumstances. Its endurance has depended substantially on the judiciary’s willingness to identify constitutional principles extending beyond the narrowest reading of individual provisions.
The basic structure doctrine represents the most consequential expression of that judicial responsibility. Through the Kesavananda Bharati judgment of 1973, the Supreme Court established that Parliament’s power to amend the Constitution does not extend to destroying its essential character. The doctrine was not explicitly written into the constitutional text. It emerged from the Court’s understanding that constitutional democracy cannot permit the instruments created by the Constitution to dismantle the foundations upon which their authority rests.
The significance of that doctrine lies in its recognition that formal legality and constitutional legitimacy are not always identical. An exercise of power may comply with certain procedural requirements while undermining the deeper principles that give those procedures meaning. Judicial review must therefore examine not only whether an action possesses statutory authority but also whether it preserves the constitutional architecture.
A comparable principle is now needed to safeguard the institutional integrity of the Election Commission. This need not involve inventing an entirely separate constitutional doctrine. The Supreme Court can develop the existing principles of basic structure, free and fair elections, judicial review and institutional independence into an enforceable standard specifically governing the electoral authority.
Such a standard would recognise that the independence of the Election Commission is not merely a desirable feature of democratic administration. It is an indispensable constitutional condition. Any legislative or executive arrangement that substantially compromises that independence should face the highest level of judicial scrutiny, regardless of whether its immediate effects can be demonstrated through a particular election result.
The Court’s 2023 judgment had already acknowledged the importance of insulating appointments from exclusive executive control. The subsequent legislation replaced the Chief Justice of India on the selection committee with a Union Cabinet Minister nominated by the Prime Minister. Although Parliament possesses the constitutional authority to legislate on appointments, that authority must operate within the larger obligation to preserve the Commission’s independence. Hence, the need for an approach similar to the basic structure doctrine.
The issue is not whether judges should permanently control electoral appointments. Judicial participation is one possible safeguard, not an end in itself. The constitutional requirement should be a selection process that prevents any political executive from exercising overwhelming influence over the appointment of those expected to regulate its own electoral conduct.
Equally important is the protection of voters against arbitrary exclusion. Electoral roll revision is a legitimate and necessary administrative responsibility. The Supreme Court has recognised the legality of special intensive revision as an exercise of the Commission’s statutory powers. But recognising that authority does not amount to granting unrestricted discretion over its implementation. Every procedure must respect fairness, proportionality and meaningful opportunities for affected citizens to establish their eligibility.
The Supreme Court has an opportunity to establish that electoral integrity requires more than the absence of proven manipulation. Public confidence depends upon procedures that are transparent, decisions that are accountable and an electoral authority whose independence is credible even to those who lose elections. A democracy cannot demand unquestioning trust while leaving reasonable institutional concerns unanswered. (IPA Service)
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