The Chief Election Commissioner (CEC) is responsible to preserve the purity of the electoral system in India and termination is made difficult as well as a Supreme Court Judge. If removed, the CEC can only be under Article 324(5) on demonstrated misbehaviour and incapacity by a majority of two-thirds in both Houses of Parliament. The process is established so as to ensure the security of the independence against political coercion. The 2023 Chief Election Commissioner and Other Election Commissioners Act changed the mechanism of appointment, removal and brought about the controversy of impartiality of the process. The recent scandals indicate conflict between political, judicial, and independence of institutions.
Context
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Constitutional protection – The framers did not provide the CEC could be terminated at will as in the case of judicial removal requirements.
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Recent Legal Reform (2023 Act) changed the appointment, tenure, and removal criteria and did not include the CJI in the selection committee and decreased the status/salary parity.
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Political debate: The criticism of the judiciary in opposition of perceived bias and shutting out the judiciary has seen critics characterize that it be reviewed in a judicial process.
Article 324(5): Constitutional Process of Removal:
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Only like a Supreme Court judge CEC removable.
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Reasons: Established conduct-related misbehaviour or inability.
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Must be approved by at least two-thirds of the Houses of Parliament.
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The President takes no discretional action on the recommendation of Parliament.
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None of the CECs were taken away since the advent of ECI 6; this is evidence of rarity and seriousness.
2023 Act Amendments at Appointment & Tenure:
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Appointed: appointment by President at the recommendation of a Selection Committee (PM, LoP in LS, Union cabinet minister).
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Search Committee: to be chaired by Cabinet Secretary to shortlist names.
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Eligible graduates: Senior bureaucrats (rank of Secretary) having experience of election management.
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Tenure: 6 years or till 65 years, whichever is sooner; no re-appointment.
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Salary: Level with Cabinet Secretary (previously the same level as SC judge).
Removal of Election Commissioners (ECs):
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Unlike CEC, other ECs can be removed only on CEC’s recommendation.
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Provision has drawn criticism for undermining equal protection.
Concerns & Criticisms:
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When CJI is not included in the selection committee there is less judicial oversight.
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Dilution of the autonomy viewed to status downgrade (SC judge to Cabinet Secretary).
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Nothing to prevent post retirement government services → danger of conflict of interest.
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Waiting Supreme Court petitions against provisions of judicial review.
Conclusion
The process of removing the CEC is patterned like an impeachment procedure and plays a key role in keeping the electoral machineries of India independent. Nonetheless, the 2023 Act has reignited the debates of neutrality and autonomy of the institution. Maintaining balance between political accountability and judicial oversight will be important to ensure that people retain the trust towards the Election Commission.
