Removal Process of Chief Election Commissioner

Removal Process of Chief Election Commissioner

Why in News? 

Recently, opposition parties have proposed a no-confidence motion against the Chief Election Commissioner (CEC), Gyanesh Kumar, accusing the Election Commission of bias and irregularities in electoral processes. 

Constitutional Grounds for Removal of Chief Election Commissioner

• Constitutional Basis: The constitutional basis for the removal of the Chief Election Commissioner (CEC) is provided in Article 324(5), which safeguards the independence of the electoral authority. 

• Article 324(5) states that the CEC cannot be removed except on the same grounds applicable to a Judge of the Supreme Court under Article 124(4).

• • • The “Doctrine of Pleasure” does not apply to the CEC. Unlike other officials, the President cannot dismiss the CEC at will. President lacks the power to fire the CEC based on cabinet advice alone. 
    • The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 reiterates the same constitutional rule.  
    • The Constitution allows Parliament to regulate the investigation of misbehaviour. This ensures the grounds for removal are judicially reviewed before any final action is taken.
    • Other Election Commissioners and Regional Commissioners can be removed by the President only based on the recommendation of the CEC. 

• Grounds for Removal: One legal ground for removal is “proved misbehaviour.” It includes corruption, abuse of constitutional powers, violation of electoral laws, moral misconduct, or actions incompatible with the dignity of the office.

• • The second constitutional ground is “incapacity.” This refers to physical or mental inability (serious illness, cognitive impairment, or conditions) that prevents the CEC from effectively performing official responsibilities.

Procedure for Removal of Chief Election Commissioner (CEC) 

• Submission of the Removal Motion: The process begins with a formal motion of removal submitted in either House of Parliament. 
  • Under the Judges (Inquiry) Act, 1968, the motion must be signed by at least 100 members of the Lok Sabha or 50 members of the Rajya Sabha. This high threshold prevents frivolous attempts to destabilize the Election Commission.
• Admission by the Presiding Officer: The Speaker of the Lok Sabha or the Chairman of the Rajya Sabha reviews the motion. They have the discretionary power to admit or refuse it. 
  • If admitted, the presiding officer is legally bound to constitute a three-member committee to investigate the specific charges of misbehaviour or incapacity.
• Judicial Inquiry Committee Formation: The investigative committee consists of a Supreme Court Judge, a Chief Justice of a High Court, and a distinguished jurist. The committee examines evidence and witnesses to determine if the charges are substantiated.
• Right to Defence: During the inquiry, the CEC is granted a reasonable opportunity to be heard. They can present their case, cross-examine witnesses, and be represented by legal counsel, ensuring the removal is not a summary dismissal.
• Tabling the Investigation Report: If the committee finds the CEC guilty of proved misbehaviour or incapacity, the report is tabled in both Houses of Parliament. 
  • If the committee exonerates the CEC, the process ends immediately, and no further action can be taken by Parliament or the President.
• Debate and Parliamentary Voting: If the report is adverse, the House where the motion originated begins a formal debate. The CEC has the right to appear and defend themselves before the entire House. Following the debate, the motion is put to a vote under strict constitutional requirements.
• Requirement of Special Majority: The removal motion must be passed by a special majority in each House separately. This requires the support of a majority of the total membership of the House and at least two-thirds of the members present and voting.
• Presentation of the Address: Once both Houses pass the motion in the same session, an Address is presented to the President of India. This Address prays for the removal of the CEC on the specific grounds of proved misbehaviour or incapacity, as mandated by Article 124(4).
• Final Presidential Order: The President issues the final order of removal after receiving the Parliamentary Address. This is the only way a CEC can be removed before their term expires or they reach 65 years.