What does the CEC Removal Act say? | Explained

Youth Congress workers protested against CEC Gyanesh Kumar in Delhi on Friday demanding his resignation | Photo credit: SUSHIL KUMAR VERMA

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The Chief Election Commissioner of India has come under scrutiny following recent revelations by The Indian Express. On 23 September, opposition parties demanded the removal of Chief Election Commissioner (CEC) Gyanesh Kumar after a revelation claimed that two of the three election commissioners, Sukhbir Singh Sandhu and Vivek Joshi, had formally registered objections at least 14 times in the last 10 months.

How are CECs and ECs appointed?

Article 324 of the Constitution entrusts the “supervision, management and control” of elections to the Election Commission of India (ECI). Article 324(2) provides that the President shall appoint the CEC and other election commissioners in accordance with any law passed by Parliament.

For several decades, Parliament did not pass a law setting out the procedure for these appointments. This led to a Supreme Court challenge on how the ECI’s independence 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.

What was the case of Anoop Baranwal?

In January 2015, Anoop Baranwal filed a Public Interest Litigation (PIL) on the grounds that the system of appointment of ECI members was unconstitutional. At that time, the Executive Director had the authority to make appointments. The PIL alleged that the ECI’s independence has diminished over time. She asked the court to issue directions to create an independent collegial system for appointments to the ECI.

The Constitutional Court ruled that until Parliament passes a law under Article 324(2), appointments to the Election Commission will 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 only work until Parliament enacted a law on the subject.

What happened after the verdict?

Parliament passed the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Tenure) Bill, 2023, which came into force in January 2024.

The appointment mechanism was different from that prescribed by the Supreme Court in Anoop Baranwal. According to 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 appointed by the Prime Minister.

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

The Act also provides for a search committee headed by the Union Law Minister to prepare a five-person panel for consideration by the selection committee.

The 2023 Act was challenged in the Supreme Court. One of the questions before the court is whether the replacement of the CJI by a Union cabinet minister is constitutionally valid. On 23 September, a bench of Justices Dipankar Datta and SC Sharma delivered a “split” verdict on the Union government’s plea seeking greater comparison of the challenges against the 2023 Act. While Justice Datta did not find a reference to the Constitution Bench necessary, Justice Sharma was in favor of sending the case to the Constitution Bench, saying several crucial issues were at stake.

How can CEC be removed?

The Constitution provides the CEC with a high degree of protection against removal. Article 324(5) states that the CEC may be removed from office “in a similar manner and for similar reasons as a judge of the Supreme Court”. This means that the CEC can only be removed on the basis of proven misconduct or incapacity and through the parliamentary procedure prescribed for the removal of a Supreme Court judge.

A motion to recall must be approved by the necessary special majority in both houses of parliament. Only after Parliament approves the proposal can the President issue an order to remove the CEC. The procedure is set out in the Judges (Inquiry) Act 1968.

The protections other election commissioners have are different. Pursuant to Article 324, paragraph 5, an election commissioner or a regional commissioner cannot be removed from office except on the recommendation of the ÚVK.

Can CEC be arrested?

The issue has come into limelight due to calls for the arrest of the incumbent CEC.

The relevant provision is § 16 of the Act of 2023. It provides protection to a person who is or was a CEC or an election commissioner from civil or criminal proceedings in court for an act, thing or word done or uttered during or in the course of an action or pretending to act in the performance of an official duty or function.

The provision is significant because it extends protection to a person who “is or has been” a CEC or an election commissioner.

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

Protection is also associated with acts done during or in the course of an act or an alleged act in the performance of an official duty or function.

Published – 27 Sep 2026 02:20 IST