Appointment and Removal of the Chief Election Commissioner and Election Commissioners

The Election Commission of India (ECI) runs elections to Parliament, state assemblies and the offices of President and Vice-President. It is led by a Chief Election Commissioner (CEC) and, at present, two other Election Commissioners (ECs). The Constitution, in Article 324, says who appoints them and how hard it is to remove them. A law passed by Parliament in 2023 fills in the details of how they are selected, how long they serve and what they are paid.

Why do these rules matter?

Think of the Election Commission as the umpire in a cricket match between political parties. If one team could pick the umpire alone, or sack the umpire whenever a decision went against it, nobody would trust the result. So the rules for choosing and removing election commissioners are really rules about keeping the umpire fair and fearless. The harder it is to remove a commissioner for political reasons, the freer he or she is to take unpopular but correct decisions.

What does Article 324 say?

Article 324 is the main article on the Election Commission. Its key clauses are:

• Article 324(1): The Commission has the power of "superintendence, direction and control" over elections to Parliament, state legislatures, and the offices of President and Vice-President.
• Article 324(2): The Commission has a CEC and as many other ECs as the President fixes from time to time. The President appoints them, "subject to the provisions of any law made in that behalf by Parliament".
• Article 324(3): When other ECs are appointed, the CEC acts as the Chairman of the Commission.
• Article 324(4): The President may appoint Regional Commissioners, after consulting the Commission, to help it before a general election.
• Article 324(5): Their service conditions and term are fixed by the President, subject to any law of Parliament. This clause also carries the two removal rules, explained below.

How were they appointed earlier?

For more than 70 years, Parliament never made the law that Article 324(2) talked about. So the President appointed the CEC and ECs on the advice of the Union government alone. In practice, the Prime Minister's choice decided the matter. Bodies such as the Dinesh Goswami Committee (1990) and the Law Commission in its 255th Report (2015) suggested that a wider panel should choose them. Critics also pointed out that many CECs got very short terms, which made it hard for them to act independently.

What did the Anoop Baranwal case decide?

In Anoop Baranwal v. Union of India, a five-judge Constitution Bench of the Supreme Court gave a unanimous verdict on 2 March 2023. The bench had Justices K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar. The court said the framers of the Constitution clearly expected Parliament to make a law, and did not want the executive alone to decide. Since no law existed, the court filled the gap with a temporary rule:

• The CEC and ECs would be appointed by the President on the advice of a committee.
• The committee would have the Prime Minister, the Leader of the Opposition in the Lok Sabha (or the leader of the largest opposition party, if there is no recognised Leader of the Opposition) and the Chief Justice of India.
• This arrangement would last only until Parliament made a law on the subject.

The court also asked Parliament to consider giving the Commission its own permanent secretariat and charging its expenses to the Consolidated Fund of India. In a separate opinion, Justice Rastogi said the removal protection given to the CEC should also be given to the other ECs.

What does the 2023 Act say?

Parliament then passed the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. It was introduced in the Rajya Sabha on 10 August 2023, passed by the Rajya Sabha on 12 December 2023 and by the Lok Sabha on 21 December 2023. It received the President's assent on 28 December 2023. It replaced the older Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. Its main features are:

• Eligibility: Candidates must be people of integrity who hold, or have held, a post equal to Secretary to the Government of India, with knowledge and experience of managing and conducting elections.
• Search Committee (Section 6): Headed by the Union Law Minister, with two other members not below the rank of Secretary. It prepares a panel of five names. (The Bill first made the Cabinet Secretary its head; this was changed before it was passed.)
• Selection Committee (Section 7): The Prime Minister (chairperson), the Leader of the Opposition in the Lok Sabha (or leader of the largest opposition party) and one Union Cabinet Minister nominated by the Prime Minister. The Chief Justice of India is not a member.
• Procedure and flexibility (Section 8): The Selection Committee must set its own procedure "in a transparent manner", meaning in a way that is open and can be checked. It can also consider people who are not on the Search Committee's panel. Its choice is not invalid just because a seat on the committee is vacant.
• Term: Six years or until the age of 65, whichever comes first. There is no reappointment. If an EC becomes CEC, the total term cannot go beyond six years.
• Salary: Equal to that of a Supreme Court judge. (The Bill first proposed the Cabinet Secretary's salary; this was changed before it was passed.)
• Removal (Section 11): Repeats the constitutional rule: the CEC is removed like a Supreme Court judge; an EC is removed only on the CEC's recommendation.
• Protection from lawsuits (Section 16): No court can hear civil or criminal cases against a serving or former CEC or EC for anything done or said while carrying out official duties. This protection, called immunity, continues even after they leave office. It was not in the original Bill. It was added as a new clause 15A through a government amendment placed before the Rajya Sabha on 12 December 2023.
• Decision-making (Section 18): The Commission should try to decide unanimously; if members differ, the majority view prevails.

The first appointments under this Act were made in March 2024, when Gyanesh Kumar and Sukhbir Singh Sandhu were appointed ECs. In February 2025, Gyanesh Kumar became the first CEC chosen under this Act. He took charge on 19 February 2025, and Vivek Joshi was appointed an EC at the same time.

How can a CEC be removed?

The first proviso to Article 324(5) says the CEC "shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court". That process is laid down in Article 124(4) of the Constitution and the Judges (Inquiry) Act, 1968. Step by step:

1. Notice: A notice of motion must be signed by at least 100 Lok Sabha members or at least 50 Rajya Sabha members.
2. Admission: The Speaker or Chairman decides whether to admit the notice. They can also refuse it.
3. Inquiry: If admitted, a three-member committee investigates. It has a Supreme Court judge, a High Court Chief Justice and a distinguished jurist.
4. Report: If the committee finds the person not guilty, the matter ends there.
5. Vote: If the committee finds the charges proved, each House votes. The motion needs a special majority in each House: a majority of the House's total membership, and also two-thirds of the members present and voting. Both Houses must pass it in the same session.
6. Order: The President then passes the removal order.

The only two grounds are "proved misbehaviour" and "incapacity". Let us see the special majority with numbers. The Lok Sabha has 543 seats. If 450 members are present and voting, the motion needs at least 300 votes (two-thirds of 450). It also needs at least 272 votes (more than half of 543). Here 300 satisfies both tests.

The first test of this process

On 12 March 2026, opposition MPs gave the first-ever notices to remove a CEC, against Gyanesh Kumar. The notices were signed by 130 Lok Sabha members and 63 Rajya Sabha members, more than the minimum in each House. The charges were mainly about the Special Intensive Revision (SIR), a fresh house-to-house check of the voter lists.

On 6 April 2026, the Lok Sabha Speaker and the Rajya Sabha Chairman both refused to admit the notices. The Rajya Sabha order, made under Section 3 of the Judges (Inquiry) Act, 1968, said the charges did not, at first sight (prima facie), meet the high bar of "misbehaviour". So the matter ended at step 2 and never reached an inquiry committee.

The first proviso adds one more protection: the CEC's service conditions cannot be changed to his or her disadvantage after appointment. So the government cannot punish a CEC by cutting salary or benefits.

How can an Election Commissioner be removed?

The second proviso to Article 324(5) says an EC or a Regional Commissioner cannot be removed except on the recommendation of the CEC. There is no parliamentary vote. The President acts on the CEC's recommendation. In T.N. Seshan v. Union of India (1995), the Supreme Court said this rule is meant to protect ECs from the government, not to make them servants of the CEC. So the CEC must have valid, solid reasons and cannot recommend removal on a whim.

The best-known case came in January 2009, when CEC N. Gopalaswami recommended the removal of EC Navin Chawla. The government did not accept it, and Chawla later became CEC.

Commonly confused concepts

• CEC removal vs EC removal: The CEC needs the full Supreme Court judge process, with Parliament's special majority. An EC can be removed by the President on the CEC's recommendation alone.
• Removal vs appointment: The 2023 Act changed who selects commissioners. It did not change how they are removed, which is fixed by the Constitution itself.
• Selection Committee (2023 Act) vs Anoop Baranwal committee: Both have the Prime Minister and the Leader of the Opposition. The court's committee had the Chief Justice of India as the third member; the Act has a Union Cabinet Minister instead.
• Removal of CEC vs impeachment of the President: The President is impeached under Article 61 for "violation of the Constitution", with a two-thirds vote of the total membership of each House. The CEC is removed under Article 324(5) read with Article 124(4) for proved misbehaviour or incapacity.
• Election Commission of India vs State Election Commissions: The ECI (Article 324) runs Parliament, assembly, President and Vice-President elections. State Election Commissions (Articles 243K and 243ZA) run panchayat and municipal elections.

Issues, criticism and the way forward

• Government majority in selection: Critics note that two of the three Selection Committee members come from the Union government, so the government can always outvote the Leader of the Opposition. The government's position is that appointments are an executive function and that Parliament was free to make its own law after Anoop Baranwal. Petitions in the Supreme Court challenge the Act, mainly the sections on the Search and Selection Committees (Sections 6, 7 and 8). On 21 March 2024, a bench of Justices Sanjiv Khanna and Dipankar Datta refused to pause the Act or the March 2024 appointments, saying a stay so close to the Lok Sabha elections would cause chaos. On 23 September 2026, a two-judge bench (Justices Dipankar Datta and Satish Chandra Sharma) gave a split verdict, meaning the judges did not agree, on whether a larger bench should hear the case. Justice Datta felt Anoop Baranwal had already settled the principles. Justice Sharma felt that whether Parliament can leave out a neutral member, such as the Chief Justice, is a new constitutional question. Both agreed to send the case to the Chief Justice of India to set up a five-judge Constitution Bench. As of October 2026, the Act remains in force and its validity is undecided.
• Unequal protection: Because ECs can be removed on the CEC's recommendation, some experts argue they may feel pressure to agree with the CEC. The Dinesh Goswami Committee and Justice Rastogi's opinion suggested giving ECs the same protection as the CEC.
• Lawsuit protection: Supporters say Section 16 shields commissioners from pressure through lawsuits. Critics say it may reduce accountability. Section 16 is also challenged in the Supreme Court, separately from the challenge to the selection rules:
• Lok Prahari petition: Filed in November 2025 by Lok Prahari, an NGO. In January 2026, a bench of Chief Justice Surya Kant and Justice Joymalya Bagchi issued notice (asked the Centre and the Commission to reply) but refused to pause the section.
• ADR petition: On 13 October 2026, the court issued notice on a similar petition by the Association for Democratic Reforms (ADR) and joined it to the Lok Prahari case.
• Jha and Agrawal petitions: On 4 November 2026, a bench of Chief Justice Surya Kant and Justices Joymalya Bagchi and V. Mohana issued notice on two more petitions. One is by Manoj Kumar Jha, a Rashtriya Janata Dal (RJD) Member of Parliament. The other is by Arun Kumar Agrawal, an activist and advocate. Both were joined to the Lok Prahari case.
• The argument: The petitioners say Section 16 breaks Article 14 (equality before law), Article 21 (right to life and personal liberty) and the basic structure of the Constitution. They also say the Commission's independence was already protected by the Constitution from 1950 to 2023, so lifelong immunity was never needed.
• Limits of "conditions of service": Article 324 lets Parliament set service conditions, such as pay and term. The petitioners say this power cannot place commissioners beyond the reach of courts for life. Article 324 has no immunity clause. The Constitution does protect the President and Governors (Article 361) and members of Parliament and state legislatures (Articles 105 and 194). The petitioners say Section 16 goes further than all of these.
• Comparison with judges: The petitioners also say Section 16 largely copies the Judges (Protection) Act, 1985. But that Act keeps the power of the government and the higher courts to act against a judge. Section 16 leaves this safeguard out.
• Status: As of November 2026, Section 16 remains in force and the court has not decided the challenge.
• A very high bar for removal: The strict process protects the CEC from political pressure. But it also makes removal very hard in practice; no CEC has ever been removed. The March 2026 notices against Gyanesh Kumar were refused at the admission stage, which shows how much power the Speaker and Chairman hold as the first filter.
• Way forward: Suggestions include equal removal protection for ECs, a permanent secretariat, expenses charged to the Consolidated Fund, and a more balanced selection panel.

Concepts to Know

• Proviso: An extra condition added to a clause of a law, usually starting with "Provided that". It adds an exception or a special rule.
• Superintendence, direction and control: Full charge. The Commission supervises, gives orders and has the final say over how elections are conducted.
• Leader of the Opposition: The leader of the largest party not in government in the Lok Sabha, recognised as such by the Speaker.
• Special majority: A higher-than-normal majority. For removing a judge or CEC, it means a majority of the total membership plus two-thirds of those present and voting.
• Consolidated Fund of India: The government's main account. Expenses "charged" on it do not need a vote in Parliament every year, which gives the body more financial freedom.
• Prima facie: A Latin phrase meaning "at first sight". A charge is prima facie valid if, on a first look, it seems strong enough to be examined further.
• Constitution Bench: A bench of at least five Supreme Court judges that decides important questions about the meaning of the Constitution.
• Immunity: Legal protection from being sued or prosecuted in a court.
• Basic structure: The core features of the Constitution, such as the rule of law and judicial review, which the Supreme Court says even Parliament cannot destroy by amendment.