What does the law say about CEC’s removal? | Explained

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The Chief Election Commissioner of India has come under scrutiny following a recent expose by The Indian Express. On September 23, Opposition parties sought the removal of Chief Election Commissioner (CEC) Gyanesh Kumar after the expose claimed that two of the three Election Commissioners, Sukhbir Singh Sandhu and Vivek Joshi, had formally recorded objections at least 14 times over the last 10 months.

Article 324 of the Constitution vests the “superintendence, direction and control” of elections in the Election Commission of India (ECI). Article 324(2) provides that the President appoints the CEC and other Election Commissioners, subject to any law made by Parliament.

For several decades, Parliament had not enacted a law laying down the procedure for these appointments. This led to a challenge before the Supreme Court on the question of how the independence of the ECI could be protected when its members were appointed by the executive. In March 2023, a five-judge Constitution Bench of the Supreme Court delivered its judgment in Anoop Baranwal v. Union of India.

In January 2015, Anoop Baranwal filed a public interest litigation (PIL) on the ground that the system for appointing members of the ECI was unconstitutional. At the time, the executive enjoyed the power to make appointments. The PIL contended that the ECI’s independence has degraded over time. It pleaded for the court to issue directions to set up an independent, collegium-like system for ECI appointments.

The Constitution Bench held that until Parliament made a law under Article 324(2), appointments to the Election Commission would be made on the recommendation of a three-member committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India. The court said the arrangement would operate only until Parliament enacted a law on the subject.

Parliament enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which came into force in January 2024.

The appointment mechanism differed from the one prescribed by the Supreme Court in Anoop Baranwal. Under the 2023 Act, the Selection Committee consists of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister.

The President appoints the CEC and ECs on the recommendation of this committee.

The Act also provides for a Search Committee headed by the Union Law Minister, which prepares a panel of five persons for consideration by the Selection Committee.

The 2023 law has been challenged before the Supreme Court. One of the questions before the court is whether replacing the CJI with a Union Cabinet Minister is constitutionally valid. On September 23, a Division Bench of Justices Dipankar Datta and S.C. Sharma delivered a ‘split’ verdict on the Union government’s plea seeking a larger bench reference of the challenges against the 2023 Act. While Justice Datta did not find a reference to a Constitution Bench necessary, Justice Sharma, held in favour of sending the case to a Constitution Bench, stating that several questions of substantial importance were at stake.

The Constitution gives the CEC a high degree of protection against removal. Article 324(5) states that the CEC can be removed from office “in like manner and on the like grounds as a Judge of the Supreme Court.” This means that the CEC can be removed only on the grounds of proved misbehaviour or incapacity and through the parliamentary procedure prescribed for the removal of a Supreme Court judge.

A removal motion has to be passed by the required special majority in both Houses of Parliament. Only after Parliament passes the motion can the President issue an order removing the CEC. The procedure is set out in the Judges (Inquiry) Act, 1968.

The protection available to the other Election Commissioners is different. Under Article 324(5), an Election Commissioner or Regional Commissioner cannot be removed from office except on the recommendation of the CEC.

This question has come into focus because of calls for the arrest of the incumbent CEC.

The relevant provision is Section 16 of the 2023 Act. It provides protection to a person who is or was a CEC or Election Commissioner from civil or criminal proceedings in court for an act, thing or word done or spoken while, or in the course of, acting or purporting to act in the discharge of official duty or function.

The provision is significant because it extends protection even to a person who “is or was” a CEC or Election Commissioner.

However, Section 16 does not expressly state that a CEC cannot be arrested. It says that no court shall entertain or continue civil or criminal proceedings in relation to conduct covered by the provision. The section does not use the words “arrest”, “investigation” or “police custody”. It therefore cannot simply be described as a blanket immunity from arrest.

The protection is also linked to acts done while, or in the course of, acting or purporting to act in the discharge of official duty or function.

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