Opposition seeks Gyanesh Kumar exit: How can a Chief Election Commissioner be removed? - The Indian Express

Congress sources told The Indian Express on Thursday (September 24) that the Opposition will soon move a motion in both Houses of Parliament to remove Chief Election Commissioner (CEC) Gyanesh Kumar. “The motion is being drafted with legal experts and we’ll soon submit notices in both Houses on behalf of joint Opposition,” said a source.

It comes a day after The Indian Express revealed the criticisms that Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi raised internally against the decisions and processes of the Election Commission of India (ECI) over the last few months. The ECI has three Election Commissioners and the CEC is first among equals — not the seniormost — and decisions are to be taken unanimously by all three as far as possible.

The revelations from the investigation have prompted the Opposition to demand Kumar’s removal. How would it play out in Parliament? Here is the process.

The ECI is entrusted with the responsibility of conducting free and fair elections in the country. Article 324 of the Constitution and the CEC and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 lay down provisions regarding the appointment, tenure, and removal of the CEC.

The President appoints the CEC and Election Commissioners upon the recommendation from a three-member selection committee comprising the Prime Minister, the Leader of the Opposition (LoP), and one member of the Union Cabinet. Those appointed should have previously held secretary-level positions in the Government and be “persons of integrity, who have knowledge of and experience in management and conduct of elections,” according to the 2023 Act.

The appointments are made for a tenure of six years or until the age of 65 years, whichever comes first. The CEC enjoys the same services and monetary benefits extended to justices of the Supreme Court.

Article 324(5) of the Constitution states that the CEC can be removed from office only “in like manner and on the like grounds as a Judge of the Supreme Court.”

This framing can also be found in Section 11(2) of the 2023 Act. The article further states that “any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner”.

With the view of shielding the ECI from political pressures, the bar for removing the CEC is purposefully set to be very high. Going by Article 124(4) of the Constitution, which contains the process for removing a Supreme Court judge, removal can only be “on the ground of proved misbehavior or incapacity.”

Misbehaviour can comprise any corrupt practices or abuse of office. Over the years, courts have interpreted this to include actions which are incompatible with the office of the CEC or the CEC’s failure to discharge her official duties. Incapacity refers to a situation where the officer is unable to perform her duties.

To initiate the removal of the CEC, members of both houses must bring a notice of motion explicitly alleging misbehaviour or incapacity. To be admitted, an impeachment motion needs to be signed by at least 100 MPs in the Lok Sabha and 50 in the Rajya Sabha. They can consult people and materials to refuse or admit the motion. If the motion is admitted, an enquiry is conducted to examine the validity of the charges. This involves forming a committee to investigate evidence of misbehaviour or incapacity.

The motion for removal then needs to be passed by a two-thirds majority “present and voting” in both houses of Parliament. Once passed successfully, the President orders the removal of the CEC.

There is no discretion once the constitutional requirements are met, since the President acts on the advice of Parliament in this context.

Back in April, the Rajya Sabha Chairman and Lok Sabha Speaker rejected the impeachment motions submitted in both Houses by the Opposition to remove CEC Kumar. Both presiding officers did not assign any reason for their decisions and the Opposition leaders criticised the move.

The TMC led the Opposition in submitting the impeachment motions in the Lok Sabha and Rajya Sabha on March 12, with 130 MPs signing the former and 63 the latter. Both motions referred to the Election Commission’s ongoing Special Intensive Revision (SIR) of electoral rolls, and alleged “partisan and discriminatory conduct” on the part of the CEC and “obstruction of investigation into electoral fraud and SIR”.

The Express investigation also reported that the two Election Commissioners raised concerns about processes linked to the SIR.