Ex-CJIs oppose ONOE and EC’s full power | Constitution expert Sanjay Hegde explains

As the push for One Nation, One Election gains momentum, former Chief Justices of India DY Chandrachud and JS Khehar have voiced strong objections to the sweeping powers proposed for the Election Commission in the Constitution (129th Amendment) Bill, 2024.

With similar concerns echoed by former CJIs Ranjan Gogoi and UU Lalit, the debate now centres on whether the government will accommodate these critical voices. Constitutional expert Sanjay Hegde joins Capital Beat to decode the implications of this legal and political churn.

How important are the statements made by Justices Chandrachud and Khehar to the Joint Parliamentary Committee?

They aren't recommendations—they're personal testimonies. The two former Chief Justices appeared as witnesses before the Joint Parliamentary Committee (JPC), which will, in turn, make recommendations to Parliament. The JPC is usually dominated by the ruling party, so its final report generally aligns with the government’s position. However, it will consider all testimonies, including those from constitutional authorities and former judges. Some inputs might be accepted, some not. We’ll have to wait for the final report.

Does the proposed bill for One Nation, One Election violate the basic structure of the Constitution?

The bill amends the Constitution, and once passed, the amendments can be challenged in court for violating the basic structure. Justice Chandrachud appears to have approached this from a theoretical angle, stating that a common election date does not inherently violate democracy.

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However, I side with the counterargument. We’re not just a democracy—we’re a parliamentary democracy. A key feature of this structure is that governments can change mid-term if they lose the confidence of the House. Fixed terms, as proposed, undermine this principle and could transform our system into something resembling a presidential model. That shift may well breach the basic structure doctrine.

Do you believe the bill gives sweeping powers to the Election Commission? Should those be curtailed?

The Election Commission already wields considerable power, and courts seldom interfere with its decisions. If these powers are expanded without checks, it risks destabilizing the balance between institutions. The danger with One Nation, One Election is this obsession with a single date—if something goes wrong on that day, or if the EC behaves improperly, the entire country could be stuck with a flawed outcome for five years. That’s why checks and balances are essential.

What kind of oversight mechanism should be in place for the Election Commission?

I'm not sure exactly what the former CJIs proposed, but oversight must include opposition participation, possibly even a veto on contentious decisions. Remember the PM–CM–DM formula? District Magistrates become crucial during vote counting. With 540 Lok Sabha seats—and more after delimitation—even a two-seat swing can change governments. If all elections are bundled together, a rigged or flawed process could have devastating, system-wide consequences.

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An oversight could involve a three-member panel: one from the ruling party, one from the opposition, and a neutral third—possibly a retired judge—as a swing vote. That kind of model would ensure decisions aren’t unilaterally imposed.

But can such a mechanism be trusted, given how recent election laws were passed excluding the Chief Justice from appointments?

That’s precisely the concern. This government has repeatedly bypassed principles of institutional neutrality. Take the law that removed the Chief Justice from the appointment process for Election Commissioners. The Supreme Court had earlier directed that a law be enacted, and the government responded by making sure that the CJI was kept out entirely.

Yes, Parliament has supremacy, but the goal must be fair and transparent governance. When the process appears rigged for political gain, public trust erodes—along with the legitimacy of the system.

Could this erosion of institutional trust lead to broader consequences, as seen in other countries?

Absolutely. History offers warnings. In Pakistan, the only free and fair election happened in 1971. When that result didn’t suit the ruling elite, it was overturned—eventually leading to the creation of Bangladesh. Later, in 1977, rigged elections there ushered in Zia-ul-Haq’s military rule.

The joke then was that Indira Gandhi had offered Kashmir in exchange for Pakistan’s Election Commissioner. The moral is clear: electoral institutions must not only be fair, but also *appear* fair. Otherwise, democratic legitimacy collapses.

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If the bill passes, do you see it being challenged in court?

That depends on the final shape of the bill. Any constitutional amendment can be challenged for violating the basic structure. As Shakespeare said, “It is excellent to have a giant’s strength, but tyrannous to use it like a giant.” The government may have the numbers to push it through, but unless it brings the people along—especially across the next several years—it may not stand judicial or democratic scrutiny.

What about curtailing or extending the tenure of existing assemblies to align with One Nation, One Election? Is that constitutionally viable?

There are already ideas being floated—extend some tenures, shorten others—so that by 2030, everything syncs up. But even if you manage that, it won’t last. Parliamentary democracies are inherently fluid. Deadlocked legislatures, mid-term collapses, snap elections—these are all part of the system. You can't enforce a five-year freeze without undermining democracy.

Dr Ram Manohar Lohia said it best: Zinda qaum paanch saal nahi rukti hai—a living nation doesn’t wait five years. Elections must remain responsive to the people’s will.

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How significant is it that former CJIs are weighing in so clearly? Will their views influence the government?

That remains to be seen. But their testimonies lend weight to the process. They can’t be dismissed easily. The government can say, “We consulted the top legal minds.” Whether it listens to them or not will be revealed in the final recommendations of the JPC and the government's subsequent actions.

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