Can the Chief Election Commissioner be removed? What the law says
From constitutional safeguards to parliamentary procedure, here’s what it takes to remove India’s top election official, and exactly why public protests, like the recent ones against CEC Gyanesh Kumar, alone cannot do it
Amidst opposition protests demanding the resignation of Chief Election Commissioner Gyanesh Kumar over alleged electoral irregularities, the Indian Constitution and the Judges Inquiry Act outline a rigorous, quasi-judicial removal process comparable to that of a Supreme Court judge requiring parliamentary approval and a special majority
Amidst opposition protests demanding the resignation of Chief Election Commissioner Gyanesh Kumar over alleged electoral irregularities, the Indian Constitution and the Judges Inquiry Act outline a rigorous, quasi-judicial removal process comparable to that of a Supreme Court judge requiring parliamentary approval and a special majority
Amidst opposition protests demanding the resignation of Chief Election Commissioner Gyanesh Kumar over alleged electoral irregularities, the Indian Constitution and the Judges Inquiry Act outline a rigorous, quasi-judicial removal process comparable to that of a Supreme Court judge requiring parliamentary approval and a special majority
The recent wave of protests by the Opposition parties, political outfits and the Cockroach Janta Party, are demanding the resignation of the Chief Election Commissioner Gyanesh Kumar over alleged irregularities and biased conduct. The Opposition is even considering an impeachment motion against the CEC. The question of what happens when the guardian of the ballot box becomes the subject of a removal demand arises. In India, public outrage may raise the question and demand accountability, but the Constitution has the answer.
Recently, the ECI filed a joint affidavit stating that blocking or obstructing the work of the Commission and its officers violate the law. The document of nearly 250 pages stressed that a CEC can be removed from office only on the same grounds and through the same procedure as a Supreme Court judge, further stating that speculative media reports on internal disputes within the ECI and concerns over the CEC’s conduct are insufficient to serve as judicial evidence.
So, how can the Chief Election Commissioner be removed from office?
The Constitution puts strict safeguards and provisions in order to protect the independence of various governmental institutions. In the case of the Election Commission of India, the Constitution exercises this through Article 324 (5). The Article states that the President decides the service conditions and tenure of Election Commissioners and Regional Commissioners, subject to any laws made by Parliament. While other Election Commissioners and Regional Commissioners may be removed on the recommendation of the CEC, the CEC can be removed only in the same manner and on the same grounds as a Supreme Court judge.
Apart from the Constitution, Parliament has also passed the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which provides for the resignation and removal process.
The steps are:
Removal procedure
Removal of the CEC follows a quasi-judicial procedure and is governed by the Judges Inquiry Act, 1968. A movement to remove the CEC stands valid only on two charges: proved misbehaviour or incapacity.
Initiation of the removal motion
The removal motion can be introduced in either house of Parliament (Lok Sabha or Rajya Sabha), stating the valid grounds upon which it has been initiated. The motion must be signed by 100 members in the Lok Sabha or 50 members in the Rajya Sabha, after which it is submitted to the Presiding Officer of the respective house (the Speaker in the Lok Sabha or the Chairman in the Rajya Sabha).
Admission and investigation
It is up to the Speaker or Chairman to admit or refuse the motion. If the motion is admitted, a three-member committee comprising a Supreme Court judge, High Court Chief Justice and a distinguished jurist is formed to investigate the levied charges.
Report submission
Here, the three-member committee begins to investigate. The CEC has the right to be heard and to defend themselves. If the committee finds the CEC guilty of the levied charges (misbehaviour/ incapacity), a report on the same is submitted to the house where the motion was originally introduced.
However, if the charges are not proved and the CEC is found not guilty, the motion is dropped, thereby ending the process.
Voting in Parliament
In order for the motion to pass, it must secure a special majority in both Houses of Parliament during the same session. Special majority refers to a minimum majority of two-thirds of the members present and voting.
Presidential order for removal
This is the last stage, wherein if the motion has successfully passed in both houses, a formal address is presented to the President of India, after which he/ she issues the official order for the removal of the Chief Election Commissioner.
Currently, the Supreme Court has agreed to examine the Election Commission of India’s records and decisions relating to the Special Intensive Revision (SIR) of electoral rolls, following petitions seeking greater transparency. Petitioners Rahul Gandhi, Leader of the Opposition in Lok Sabha, Rakesh Kumar Singh and Adv. Shailendra Mani Tripathi, strongly oppose the contentions in the affidavit.
The court has scheduled a hearing for mid-November and issued a notice in a separate challenge alleging changes to Form 6 (official statutory application form issued by ECI for the inclusion of a name in the electoral roll).
NOTE: Although political discourse has widely referred to the CEC’s removal process as impeachment, the term is technically reserved only for the President of India, as enshrined in the Constitution. The term is 'removal' for Judges and the CEC.