The Election Commission is a permanent and an independent body established by the Constitution of India directly to ensure free and fair elections in the country. Article 324 of the Constitution and the Chief Election Commissioner (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.
Composition of Election Commission
The Election Commission shall consist of the chief election commissioner and such number of other election commissioners, if any, as the president may from time to time fix. Since 1993, the Election Commission has been functioning as a multi-member body consisting of three election commissioners (Chief Election Commissioner and two other Election Commissioners).
Appointment of Chief Election Commissioner and Other Election Commissioners
The Chief Election Commissioner (CEC) and election commissioners are appointed by the President of India 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 that are extended to justices of the Supreme Court.
Process of Removal
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 his 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. After 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 the houses of Parliament. Upon successful passage in the House, 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.
