CEC can be removed only like an SC judge, ECI says in affidavit

1. At a Glance

• The Election Commission of India (ECI) has filed a joint affidavit in the Supreme Court. It argues that the Chief Election Commissioner (CEC) can be removed only in the same manner, and on the same grounds, as a Supreme Court judge, and that any attempt to restrain the CEC's functioning would be contrary to law. [1]
• The case puts constitutional safeguards for a poll body's independence up against demands for internal accountability in a multi-member Commission. The petitioners allege "unilateral or authoritarian" functioning by the CEC. [1]
• The case links three things: the Article 324(5) removal shield, the CEC & Other ECs Act, 2023 (Section 18, majority rule), and the post-Anoop Baranwal debate on appointments. These are core topics for GS-II (Polity) Prelims and Mains. [1][2]

2. Why in the News

• Late on Monday, 26 October 2026: the ECI, CEC Gyanesh Kumar, and Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi filed a joint affidavit of nearly 250 pages in the Supreme Court. The Hindu reported it on 27 October 2026. [1]
• The petitioners include the Leader of the Opposition in the Lok Sabha and other INDIA bloc leaders. They challenge how the CEC functions. [1]
• The trigger: a media report on internal frictions within the Commission and on alleged unilateral or authoritarian functioning by the CEC. [1]
• The affidavit's main pleas: [1]
• Media reports are "hardly evidence", so petitions based on them should not be maintainable.
• The Commission "neither released nor authorised the release of any internal note or file to any news agency".
• Form 6 was not changed.
• All three members are "on the same page".

3. Background & Evolution

• 1950: The ECI was set up on 25 January 1950 under Article 324. It was a single-member body (only the CEC) until 1989. [2]
• 16 October 1989: two additional ECs were appointed for the first time. The posts were abolished in January 1990. [2]
• 1 October 1993: the Commission became multi-member again (CEC + 2 ECs) through an ordinance. That ordinance was later replaced by the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, as amended in 1993. [2]
• 1995, T.N. Seshan v. Union of India: the Supreme Court upheld the multi-member structure and decision-making by majority. It held that the CEC is not superior to the ECs in decision-making, only primus inter pares (first among equals). [2]
• 2 March 2023, Anoop Baranwal v. Union of India (5-judge Constitution Bench): until Parliament made a law, appointments were to be made on the advice of a committee of the PM, the LoP (or leader of the largest Opposition party) and the CJI. [2]
• December 2023: Parliament enacted the CEC and Other ECs (Appointment, Conditions of Service and Term of Office) Act, 2023. It repealed the 1991 Act and replaced the CJI with a Union Cabinet Minister on the selection committee. [2]
• 2025: Gyanesh Kumar became CEC, the first appointed under the 2023 Act. [2]
• October 2026: the ECI filed the affidavit asserting the removal shield and the majority rule (Section 18 of the 2023 Act). [1]

4. Core Static Facts

Item	Fact
Constitutional basis	Article 324: superintendence, direction and control of elections to Parliament, State Legislatures, and the offices of President and Vice-President [2]
Composition	CEC plus as many ECs as the President fixes (Art. 324(2)); currently CEC + 2 ECs [1][2]
Removal of CEC	Art. 324(5), first proviso: only in the manner and on the grounds of an SC judge [1][2]
SC judge removal	Art. 124(4): "proved misbehaviour or incapacity"; an address by each House passed by a majority of total membership plus 2/3 of members present and voting; procedure under the Judges (Inquiry) Act, 1968 [2]
Removal of ECs	Only on the recommendation of the CEC (Art. 324(5), second proviso) [2]
Service conditions	The CEC's conditions of service cannot be varied to their disadvantage after appointment (Art. 324(5)) [2]
Statute	CEC & Other ECs (Appointment, Conditions of Service and Term of Office) Act, 2023 [1][2]
Selection committee (2023 Act)	PM (chair), LoP in Lok Sabha (or leader of the largest Opposition party), and a Union Cabinet Minister nominated by the PM [2]
Search committee	Headed by the Union Law Minister, with two officers of Secretary rank or above; it shortlists 5 names [2]
Term	6 years or age 65, whichever is earlier; no reappointment [2]
Decision rule	Section 18: business is transacted unanimously where possible; if there is a difference of opinion, the majority view prevails [1][2]
Current members	CEC Gyanesh Kumar; ECs Sukhbir Singh Sandhu and Vivek Joshi [1]
Form 6	Application form for inclusion of a name in the electoral roll (new electors), under the Registration of Electors Rules, 1960 [1][2]

5. Multi-Dimensional Analysis

Legal / Constitutional

• What Art. 324(5) does: it shields the CEC from executive removal. What it does not do: it does not, on its face, bar judicial review of the CEC's administrative conduct. The court will have to separate removal from restraint of functioning. [1][2]
• Maintainability: the ECI argues that petitions resting on media reports fail the evidentiary threshold. This tests the limits of Article 32 PILs. [1]
• Section 18 (majority rule): this codifies the reasoning in T.N. Seshan. A CEC cannot legally act alone on matters that belong to the Commission. This is why the ECI stresses that all three members agree. [1][2]

Ethical / Governance

• Asymmetry of protection: the CEC has SC-judge-level security of tenure, but ECs can be removed on the CEC's recommendation. Critics argue this gives the CEC leverage over the ECs. [2]
• Leaks of internal notes: the ECI denies authorising any leak. This raises questions of institutional confidentiality versus transparency (whether the RTI Act applies to the ECI's internal deliberations). [1]
• Executive-dominated selection under the 2023 Act (PM + Minister form a 2-of-3 majority) feeds perceptions of bias. This is the backdrop to the Opposition's challenge. [2]

Political / Federal

• The LoP and the INDIA bloc as petitioners show sharp friction between the Opposition and the ECI. Trust in the referee of elections is a core part of democratic legitimacy. [1]
• The removal route needs a special majority in both Houses. In practice, removal is nearly impossible without broad cross-party consensus, so litigation becomes the Opposition's fallback tool. [2]

Administrative

• The Form 6 controversy concerns how electoral rolls are revised. The ECI says the form itself was not changed. Electoral roll integrity is a recurring issue in disputes over roll revisions. [1]
• A multi-member body needs internal procedures (meetings, recorded dissent) to make the Section 18 majority rule work in practice. [1][2]

Historical / Comparative

• No CEC has ever been removed under Art. 324(5). [2]
• The Seshan era (1990s) is the precedent for clashes over a "strong CEC". It led to the multi-member reform of 1993. [2]

6. Recent Developments (last 12-18 months)

• 2025: Gyanesh Kumar takes office as CEC under the 2023 Act, and Vivek Joshi joins as an EC. [2][1]
• 2025-26: petitions by the LoP in the Lok Sabha and INDIA bloc leaders challenge the CEC's functioning. They rely partly on a media report about internal frictions. [1]
• 26 October 2026: the ECI and all three Commissioners file a joint affidavit of about 250 pages in the Supreme Court. [1]
• It asserts the removal shield and the majority rule under Section 18.
• It denies any leak of internal notes.

• It states that Form 6 was not changed.

• Pending: challenges to the 2023 Act itself (exclusion of the CJI from the selection committee) are before the Supreme Court. [2]

7. Prelims Hooks

• The CEC can be removed only in the manner and on the grounds of an SC judge: Art. 324(5). [1][2]
• Election Commissioners can be removed only on the recommendation of the CEC. [2]
• Grounds for removing an SC judge: "proved misbehaviour or incapacity" under Art. 124(4). [2]
• Removal needs a special majority in each House: a majority of total membership plus 2/3 of members present and voting. [2]
• Decisions of a multi-member ECI are taken by majority: Section 18 of the CEC & Other ECs Act, 2023. [1]
• The 2023 Act repealed the Election Commission (Conditions of Service…) Act, 1991. [2]
• Selection committee under the 2023 Act: PM, LoP (Lok Sabha), and a Cabinet Minister nominated by the PM. The CJI is not a member. [2]
• The search committee is headed by the Union Law Minister. [2]
• Anoop Baranwal v. UoI (2 March 2023) had put the CJI on the interim selection panel. [2]
• T.N. Seshan v. UoI (1995) upheld the multi-member ECI and majority decision-making. [2]
• The ECI has been multi-member continuously since 1 October 1993; it was first briefly multi-member in 1989. [2]
• Form 6: inclusion of a name in the electoral roll (new voters). [1][2]
• The number of ECs is fixed by the President (Art. 324(2)), not by the Constitution. [2]
• Current ECs: Sukhbir Singh Sandhu and Vivek Joshi. [1]

8. Why the Two ECs Are Less Free Than the CEC

• The majority rule only works if each member can safely vote against the CEC
• Section 18 says the majority view wins when the three members disagree [1].
• In T.N. Seshan (1995), the Supreme Court held that the ECs are at par with the CEC [3].
• But an EC can be removed on the CEC's recommendation, while the CEC can be removed only like an SC judge [3].

• So an EC who keeps outvoting the CEC is voting against the person whose recommendation can end their job. On paper they are equals. In real life, one of the three is much safer than the other two.

• The Supreme Court said it cannot fix this gap itself

• In Anoop Baranwal (2023), the Court said it could not order equal removal protection, because the Constitution itself sets out different removal processes [3].
• It said giving ECs the same protection "is a matter for Parliament to consider" [3].

• Any change would need a Constitutional Amendment (a change to the text of the Constitution under Article 368) [3].

• Why this matters for the present case

• The petitioners allege that the CEC acts alone [1]. The ECI replies that all three members are "on the same page" [1].
• Because of the removal gap, an outsider cannot easily tell whether two ECs agree freely or simply avoid a clash. The affidavit cannot settle this, however sincere it is.

9. The ECI's Strongest Argument, and Where It Stops

• What the ECI gets right
• The removal shield exists so that political actors cannot pressure the referee of elections in the middle of a contest [1].
• If a newspaper report alone could take a constitutional body to court, any party could slow down the Commission with a news story. That is why the ECI says media reports are "hardly evidence" [1].

• A joint affidavit signed by all three members is real evidence against the charge of one-man rule. Under Section 18, a decision that all three members back is lawful [1].

• Where the argument stops working

• Article 324(5) protects the CEC from removal. It does not say the CEC's decisions are free from judicial review (the courts' power to check whether an action follows the law).
• The petitioners are not asking Parliament to remove the CEC. They are asking the court to examine how decisions are taken [1]. Pointing to the removal shield answers a different question.

• The CEC is treated like an SC judge for removal, but not for pay. The 2023 law links the CEC's pay to the Cabinet Secretary's, and the government fixes that pay. An SC judge's salary is fixed by an Act of Parliament under Article 125 [3]. So the claim of SC-judge status is only partly true.

• Honest conclusion

• The ECI is right that a news report is a weak basis for a case.
• But the doubts about trust come from how the law is designed: who appoints the members, who can remove them, and who sets their pay. No affidavit can remove those doubts.

10. Who Picks the Referee Decides How Far People Trust It

• The government holds 2 of the 3 votes on the selection committee
• The committee is the PM, a Cabinet Minister nominated by the PM, and the LoP [3].
• PRS notes that this government majority "may undermine the independence of the ECI" [3].

• The LoP can always be outvoted 2-to-1. So the Opposition has no real say, and it turns to the courts instead. This is the same group that has now filed the present petitions [1].

• When the Lok Sabha is dissolved, the committee can be made up only of ruling party members

• Under the law, the committee's choice stays valid even if one seat is empty [3].
• The PM and Minister seats can never be empty. But there is no LoP once the Lok Sabha is dissolved, which happens just before a general election [3].

• At that point the committee "will consist exclusively of ruling party members" [3]. So a Commissioner could be picked just before the very election they will run.

• The selection panel can look beyond the shortlist

• The selection committee can choose someone outside the search committee's list [3].
• This weakens the search committee (the body that prepares the shortlist). PRS also notes that the opposite risk exists: a search committee made only of civil servants would otherwise control the choice [3].

11. How Other Democracies Choose Their Election Bodies

• South Africa: a judge chairs the selection panel
• The President of the Constitutional Court chairs the panel. Members include representatives of the Human Rights Commission and the Commission on Gender Equality, and the public prosecutor [3].

• One of the five commissioners must be a judge, and members must not have high party-political profiles [3].

• United Kingdom: Parliament, not the government, runs the process

• A Speaker's Committee of MPs oversees recruitment, and the House of Commons approves the candidates [3].

• Canada: the whole House decides

• The head of elections is appointed by a resolution of the House of Commons [3]. The Opposition votes on the choice and so shares ownership of it.

• United States: the Senate confirms

• The President appoints commissioners and the Senate confirms them. Serving office-holders are barred [3].

• What this tells India

• In each of these systems, someone other than the ruling government has a real veto or a real voice.
• India's 2023 committee gives the Opposition a seat but no veto [3]. This is the main difference.

12. What Parliament, the Court and the ECI Should Do Next

• Parliament: give the two ECs the same removal protection as the CEC
• The Law Commission's 255th Report (2015) recommended amending Article 324(5) so that ECs can be removed only in the same way as the CEC [4].

• The Supreme Court in Anoop Baranwal said this is for Parliament to decide [3]. That would make the Section 18 majority rule a real check.

• Parliament: put a neutral member on the selection committee

• The 255th Report suggested a three-member collegium of the PM, the LoP and the CJI for all Commissioners, including the CEC [4].

• The Goswami Committee and the Supreme Court also made suggestions on removal that, PRS notes, the 2023 law "has not addressed" [3].

• Parliament: fix the CEC's pay by law, as for SC judges

• Fixing pay through an Act, as Article 125 does for SC judges, removes the government's control over pay [3].

• The Supreme Court: separate the two questions clearly

• It can uphold the removal shield and still decide whether it may examine how decisions are recorded under Section 18 [1].

• A clear ruling would also guide future petitions that rely on media reports.

• The ECI: record dissent in writing

• The ECI says no internal note was leaked [1]. Keeping signed minutes of each decision, with any dissent noted, would let the Commission prove majority decisions without relying on leaks or affidavits.

13. Anchors for Answers

• Report/Committee: Law Commission 255th Report (2015): equal removal protection for ECs, and a PM + LoP + CJI collegium for appointments [4]
• Report/Committee: PRS Legislative Brief on the CEC Bill, 2023: the government majority on the selection committee and the pay link to the Cabinet Secretary may weaken independence [3]
• Law/Case: Anoop Baranwal v. UoI (2023): the Court cannot order equal removal protection for ECs; Parliament must decide [3]
• Law/Case: Article 324(5) (removal shield); Article 125 (SC judges' pay fixed by an Act of Parliament) [3]
• Comparison: South Africa: the President of the Constitutional Court chairs the selection panel; UK: a Speaker's Committee of MPs oversees it; Canada: appointment by resolution of the House of Commons [3]

14. Mains Relevance

• GS-II:
• Appointment to various constitutional posts, powers, functions and responsibilities of various constitutional bodies.
• Salient features of the Representation of People's Act.

• Separation of powers and judicial review.

• GS-IV: institutional integrity, impartiality, and confidentiality versus transparency in public institutions.

• Possible question stems: 1. "Security of tenure under Article 324(5) protects the Election Commission from executive interference but may insulate it from accountability." Critically examine in the light of recent litigation. (15 marks) 2. Discuss whether the CEC and Other ECs Act, 2023 strengthens or dilutes the independence of the Election Commission, with reference to Anoop Baranwal (2023). (15 marks) 3. "A multi-member Election Commission is a check on the Chief Election Commissioner." Evaluate this statement in the context of the majority-decision principle. (10 marks)

15. Related Topics to Study Next

• Anoop Baranwal v. UoI (2023): the judgment that triggered the 2023 Act and the selection debate.
• Impeachment / removal of judges (Art. 124(4), Judges (Inquiry) Act, 1968): the procedure that applies to the CEC by reference.
• T.N. Seshan v. UoI (1995): the origin of the majority rule and the CEC as primus inter pares.
• Electoral roll revision (Form 6, Registration of Electors Rules, 1960, Special Intensive Revision): the operational dispute behind the petitions.
• Comparable constitutional bodies' removal clauses (CAG under Art. 148, UPSC under Art. 317): useful for comparison MCQs.
• Model Code of Conduct and the ECI's Art. 324 plenary powers: the scope of what "restraining functioning" would affect.
• Electoral reforms (Dinesh Goswami Committee, Law Commission 255th Report): earlier proposals on collegium-based ECI appointments.

16. NCERT Concepts to Revise

• Chief Election Commissioner (Polity): The CEC's removal protection and role in the Commission is the central subject of the affidavit.
• Removal of judges (Polity): The CEC can be removed only the way a Supreme Court judge is, so this procedure applies.
• Special majority (Polity): Removing a judge, and so the CEC, needs this special majority in both Houses, which makes it very hard.
• Multi-member Election Commission (Polity): The affidavit relies on majority decision-making among the CEC and two ECs, upheld in T.N. Seshan.
• Election Commissioners (Polity): ECs can be removed only on the CEC's recommendation, so their protection is weaker than the CEC's.
• Judicial review (Polity): The court must decide whether it can restrain the CEC's functioning without breaching the removal protection.

17. Common Errors / Trap Areas

• ECs do NOT have the same protection as the CEC. ECs are removable on the CEC's recommendation, not through the SC-judge procedure. [2]
• The removal procedure is not "impeachment" in the Art. 61 (President) sense. The parallel is with Art. 124(4). [2]
• The CJI is NOT on the selection committee under the 2023 Act. The CJI was on the interim panel only under Anoop Baranwal. [2]
• The 1991 Act has been repealed. The majority-rule provision now sits in Section 18 of the 2023 Act. [1][2]
• The number of ECs is not fixed by the Constitution. The President decides it. [2]
• Form 6 is for inclusion of a name. Do not confuse it with Form 7 (objection/deletion) or Form 8 (correction/shifting). [2]