India’s law sets a high bar for removing the chief election commissioner

India’s Chief Election Commissioner can be removed only through a demanding parliamentary process, with the Constitution giving the office stronger protection than that available to other Election Commissioners. The issue has come under scrutiny after Opposition parties on September 23 sought the removal of Chief Election Commissioner Gyanesh Kumar. Their demand followed an Indian Express report claiming that Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi had formally recorded objections at least 14 times over the previous 10 months.

Article 324(5) of the Constitution says the CEC may be removed from office in the same manner and on the same grounds as a Supreme Court judge. Removal therefore requires proved misbehaviour or incapacity, followed by passage of a motion with the required special majority in both Houses of Parliament. The President may issue the removal order only after Parliament passes the motion.

The procedure is set out in the Judges (Inquiry) Act, 1968. By contrast, an Election Commissioner or Regional Commissioner cannot be removed except on the recommendation of the CEC. The Constitution also provides the framework for appointing the Election Commission.

Parliament enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which took effect in January 2024. Under that law, a selection committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister recommends appointments to the President. A search committee led by the Union Law Minister prepares a panel of five people for consideration.

The law has been challenged in the Supreme Court because its selection mechanism replaces the Chief Justice of India with a Union Cabinet Minister. On September 23, a Division Bench delivered a split decision on whether the challenge should be referred to a larger bench. Section 16 of the 2023 Act protects current and former election commissioners from civil or criminal proceedings for acts or words undertaken in the course of official duties.

The provision does not expressly mention arrest, investigation or police custody, and therefore cannot simply be described as blanket immunity from arrest.