How Constitution shields Chief Election Commissioner from arbitrary removal

India Today

2 days ago

Amid growing friction between the Congress-led Opposition and the Election Commission of India (ECI), India Today has learnt that the Opposition is considering initiating a formal notice of removal against Chief Election Commissioner Gyanesh Kumar. This unprecedented move follows allegations by Leader of the Opposition Rahul Gandhi and others, accusing the Election Commission of India of large-scale 'vote theft' and procedural irregularities, especially during the Special Intensive Revision of electoral rolls in Bihar and the conduct of the 2024 Lok Sabha elections.advertisementThis development raises questions about the removal process of a Chief Election Commissioner and the legal framework that governs it.The office of the Chief Election Commissioner is a high constitutional post, entrusted with the responsibility of ensuring free and fair elections in the country. Given its importance, the Constitution of India provides a strong safeguard for the independence and autonomy of this office, laying down a removal process that is as stringent as that for a judge of the Supreme Court.CONSTITUTION ON OUSTING OF CEC
The primary provision governing the removal of the Chief Election Commissioner is articulated in Article 324(5) of the Constitution of India. Article 324(5) of the Constitution states, in relevant part — "...the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court..."To understand the process, one must examine Article 124(4) of the Constitution, which outlines how a Supreme Court judge may be removed. According to this provision, a judge can be removed only by an order of the President, following an address passed by each House of Parliament. The address must be supported by both an absolute majority of the total membership of the House and a two-thirds majority of the members present and voting. Removal is permitted only on grounds of 'proved misbehaviour or incapacity.'The term 'proved' is crucial, as it implies that a formal enquiry must precede any parliamentary action. A similar process applies to the Chief Election Commissioner.The investigation and enquiry mechanism is governed by the Judges (Inquiry) Act, 1968. Article 124(4) of the Constitution says "A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity."advertisementAlthough the Constitution does not define 'misbehaviour,' it is generally understood to include wilful misconduct, corruption, moral turpitude, abuse of office, or repeated dereliction of duty. Misbehaviour must be deliberate and sustained, not accidental or isolated. Cumulative acts that reflect a pattern may also qualify.'Incapacity,' on the other hand, refers to physical or mental conditions that render an official unfit to discharge their duties.To begin the removal process, a motion must first be introduced in either House of Parliament. It requires signatures from at least 100 members of the Lok Sabha or 50 members of the Rajya Sabha, depending on the House in which it is introduced.Once submitted, the Speaker (in the Lok Sabha) or the Chairman (in the Rajya Sabha) decides whether to admit the motion. Admission does not imply guilt, but is necessary to initiate further proceedings. If admitted, a three-member enquiry committee is constituted. This committee must include a sitting judge of the Supreme Court, the Chief Justice of a High Court, and a distinguished jurist.The committee investigates the charges, frames specific allegations, and gives the CEC an opportunity to respond. Once the enquiry is completed, the committee submits its findings to the presiding officer of the House where the motion was introduced.advertisementIf the committee finds no evidence of misbehaviour or incapacity, the process ends and the motion is dropped. If the findings support the charges, the motion is presented to both Houses of Parliament along with the report.Both Houses must then debate and pass the motion with the required special majority. If the motion passes in both Houses during the same session, an address is sent to the President of India, who is constitutionally bound to remove the Chief Election Commissioner.It is important to note that this removal mechanism is separate from other ways in which the CEC may vacate office. As per Section 4 of the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, the term of office for a CEC is six years or until the age of sixty-five, whichever is earlier. The CEC may also resign voluntarily by submitting a written resignation to the President.- Ends