Bid to restrain functioning of CEC is against law: ECI to SC

1. At a Glance

• The Election Commission of India (ECI), Chief Election Commissioner (CEC) Gyanesh Kumar and the two Election Commissioners (ECs) filed a joint affidavit in the Supreme Court. They said that any attempt to restrain the CEC from functioning would be "contrary to law" [1].
• The core legal point is security of tenure. The affidavit says a CEC can be removed only in the manner and on the grounds that apply to removing a Supreme Court judge [1].
• The case raises a structural question. Is the ECI a multi-member body that decides collectively, or does the CEC hold primacy? The affidavit argues that decisions pass through both ECs before reaching the CEC [1].
• UPSC relevance: GS-II (constitutional bodies, independence of the ECI, electoral reforms). It is also a Prelims staple on the removal of the CEC versus the ECs.

2. Why in the News

• 26 October 2026 (Monday): The ECI, the CEC and both ECs filed a joint affidavit in the SC opposing a bid to restrain the CEC's functioning. The Hindu reported it on page 1 on 27 October 2026 [1].
• The affidavit makes three points [1]:
• Restraining the CEC is contrary to law.
• Removal is possible only on grounds and through a procedure identical to removing an SC judge.

• ECI decisions are not unilateral: "Decisions are first sent to one Election Commissioner and then to the other Election Commissioner and then finally to the CEC."

• The ECI also told the Court there was no change in Form 6, the form used to get a name included in the electoral roll [1].

3. Background & Evolution

• 1991: Parliament passed the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. It governed ECI service conditions and business rules until 2023 [3].
• 2023: The CEC and Other ECs Bill, 2023 was introduced to replace the 1991 Act. It covers the appointment, salary and removal of the CEC and ECs [3].
• 28 December 2023: It was enacted as the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, Act No. 49 of 2023. The administering ministry is the Ministry of Law and Justice [2].
• Under the new Act:
• The President appoints the CEC and ECs on the recommendation of a Selection Committee [3].

• Salary and service conditions are pegged to those of the Cabinet Secretary. A proviso protects existing office-holders from changes to their disadvantage [4].

• October 2026: A challenge seeking to restrain the CEC's functioning reached the SC, and the ECI filed the joint affidavit in response [1].

4. Core Static Facts

Standard constitutional text (not retrieved this session; check against the bare Constitution):

• Article 324(1) vests superintendence, direction and control of elections in the Election Commission.
• Under Article 324(5), the CEC is removable only like an SC judge (Article 124(4): proved misbehaviour or incapacity, through a special-majority address in both Houses).
• The ECs can be removed only on the CEC's recommendation.

5. Multi-Dimensional Analysis

Legal / Constitutional

• The affidavit relies on security of tenure. Because the CEC's removal is pegged to that of an SC judge, the ECI argues that any judicial restraint short of removal would be contrary to law [1].
• The 2023 Act now provides the statutory framework for appointment, salary and removal, replacing the 1991 Act [2][3].
• The SC has to weigh two things: judicial review of the ECI's internal functioning, and the constitutional insulation of the CEC.

Ethical / Governance

• Collective decision-making: The ECI says files move EC → EC → CEC, so decisions are not unilateral [1]. This responds directly to charges that the CEC acts alone.
• Institutional credibility: When the ECI's own functioning is litigated, public trust in electoral management is affected.

Administrative

• The affidavit describes a sequential file-routing system inside the Commission [1].
• The ECI says Form 6 is unchanged [1]. This bears on electoral-roll revision and how inclusive the roll is.

Political / Federal

• Elections to the Lok Sabha, the Rajya Sabha, State legislatures and the offices of President and Vice-President depend on the ECI being seen as neutral. Disputes over the CEC's conduct can turn into partisan confrontation. (Contextual.)

Historical

• Questions about the CEC's primacy over the ECs predate 2023. Whether the ECI works as a single-member or multi-member body has been debated since it first became multi-member. (Contextual; not retrieved this session.)

6. Recent Developments (last 12–18 months)

• 28 December 2023 (baseline): The 2023 Act was enacted and became the operative law on CEC and EC service [2].
• 26 October 2026: The ECI, the CEC and both ECs filed the joint affidavit in the SC calling the bid to restrain the CEC "contrary to law" [1].
• 26 October 2026: In the same filing, the ECI described its sequential decision-making process and confirmed that Form 6 is unchanged [1].
• Verify before use: secondary coverage in 2026 reported two related events. One was an Article 32 plea seeking the CEC's suspension. The other was the rejection of Opposition MPs' removal notices by the presiding officers of Parliament. Neither was confirmed from a whitelisted source in this session.

7. Prelims Hooks

• The joint affidavit was filed in the SC by the ECI, the CEC and both ECs together [1].
• Gyanesh Kumar is the Chief Election Commissioner (2026) [1].
• According to the ECI, a CEC can be removed only in the manner and on the grounds that apply to an SC judge [1].
• ECI file route as stated in the affidavit: EC-1 → EC-2 → CEC [1].
• Form 6 is the form for inclusion in the electoral roll [1].
• The governing law is the CEC and Other ECs (Appointment, Conditions of Service and Term of Office) Act, 2023 [2].
• It is Act No. 49 of 2023 [2].
• It was enacted on 28 December 2023 [2].
• It replaced the Election Commission (Conditions of Service of ECs and Transaction of Business) Act, 1991 [3].
• The CEC and ECs are appointed by the President on a Selection Committee's recommendation [3].
• CEC and EC service conditions are equated with those of the Cabinet Secretary, not an SC judge, under the 2023 Act [4].
• The administering ministry is the Ministry of Law and Justice, not the MHA [2].

8. Protection From Removal Is Not Protection From the Court

• The strongest argument against the ECI
• The petitioners can say this: Article 324(5) protects the CEC from removal. It does not stop a court from checking how the CEC uses his powers.
• The SC has long held that ECI decisions under Article 324 can face judicial review (the court's power to check whether an action follows the Constitution and the law). The leading case is Mohinder Singh Gill v. Chief Election Commissioner (1978). (Standard case law, not retrieved this session.)

• So when the ECI calls any restraint "contrary to law" [1], it treats a shield against removal as if it were a shield against all court orders.

• What the ECI gets right

• Suppose a court stops a CEC from working while he stays in office. In practice that is removal, without the special-majority address in Parliament that Article 324(5) and Article 124(4) demand.

• If such orders were easy to get, any party unhappy with an election decision could ask for one in the middle of polls. Security of tenure exists to block exactly this kind of pressure.

• A fair conclusion

• The Court can strike down a particular decision of the ECI.
• Stopping the person from working is much harder to justify, because it skips the removal process the Constitution lays down.
• The real question for the bench is where reviewing an act ends and removing an office-holder begins.

9. Why the Three-Step File Route Does Not Prove Equal Say

• Moving files in order is not the same as deciding together
• The affidavit says files go to one EC, then the other EC, then the CEC [1].
• This shows that every member sees each file. It does not show what happens when they disagree, or whether the CEC can overrule both ECs.

• In T.N. Seshan v. Union of India (1995), the SC upheld a multi-member ECI in which the CEC is only first among equals and decisions go by majority. (Standard case law, not retrieved this session.) If the ECI wants to prove collective working, it has to show majority rule, not just the order in which files move.

• The ECs may not feel free to disagree

• Only the CEC has removal protection like an SC judge [1].
• The ECs can be removed on the CEC's recommendation (Article 324(5), proviso).
• So an EC who keeps voting against the CEC depends on that same CEC for his job. This weakens the claim that two ECs act as a real check on him.

10. A Strong Shield After Appointment, a Weak Filter Before It

• The protection covers whoever the government picks
• The President appoints on the recommendation of a Selection Committee [3]. In the 2023 Bill, the committee is the Prime Minister, a Union Cabinet Minister he nominates, and the Leader of Opposition in the Lok Sabha [3].
• So the government side has 2 votes out of 3 and can always outvote the Opposition.

• In Anoop Baranwal (2023), the SC had put the Chief Justice of India on the panel until Parliament passed a law. The 2023 Act gave that seat to a minister instead.

• Why this matters for the present case

• Once appointed, the CEC is very hard to remove. The ECI is now relying on that protection [1].
• But removal protection only means something if the appointment itself is seen as neutral. When the government controls who is chosen, critics see the shield as protecting the government's choice, not the institution.
• This is why disputes over a CEC's conduct now reach the Court. Parliament's removal route needs a special majority, so a minority Opposition cannot use it.

11. What Parliament and the ECI Should Do Next

• Parliament: give the ECs the same removal protection as the CEC
• The Dinesh Goswami Committee (1990) and the Law Commission's 255th Report on Electoral Reforms (2015) both recommended this. (Not retrieved this session; check before use.)

• Then no EC's job would depend on the CEC's goodwill, and the EC → EC → CEC route [1] would become a real check.

• Parliament: make the Selection Committee more balanced

• The Law Commission's 255th Report proposed a panel of the PM, the Leader of Opposition and the CJI. This is the same panel Anoop Baranwal used as a stop-gap. (Not retrieved this session.)

• Adding a non-government member would reduce the doubt that pushes these disputes to court in the first place.

• ECI: publish its business rules and record dissent

• The affidavit describes the file route only in general terms [1].

• Written rules that are public, saying majority decides and dissent is recorded, would let the ECI prove it works collectively instead of only claiming it.

• Check before you write: the note says pay is at par with the Cabinet Secretary, but this comes from the Bill text [4]. Check the enacted Act [2], because the Bill was amended before it passed.

12. Anchors for Answers

• Report/Committee: Dinesh Goswami Committee on Electoral Reforms (1990); Law Commission 255th Report on Electoral Reforms (2015): equal removal protection for ECs and a neutral appointment panel (verify)
• Law/Case: Article 324(5) and Article 124(4); Mohinder Singh Gill (1978): ECI actions can be judicially reviewed; T.N. Seshan v. UoI (1995): multi-member ECI, CEC first among equals, majority rule; Anoop Baranwal v. UoI (2023): CJI on the panel until Parliament legislates
• Data: Selection Committee under the 2023 law: 3 members, 2 from the government side (PM and a nominated Cabinet Minister) [3]

13. Mains Relevance

• GS-II: Appointment to various constitutional posts, powers, functions and responsibilities of constitutional bodies. Also covers salient features of the Representation of People's Act and the separation of powers between organs.
• GS-IV (secondary): Probity in governance and institutional integrity.
• Possible question stems: 1. Security of tenure of the Chief Election Commissioner is a cornerstone of free and fair elections. Examine in light of recent litigation concerning the functioning of the Election Commission of India. (15 marks) 2. Critically analyse whether the Election Commission of India functions as a collegial body or as a CEC-centric institution. Suggest reforms to strengthen its internal democracy. (10 marks) 3. Evaluate the 2023 law on the appointment and service conditions of the CEC and ECs against the constitutional goal of an independent Election Commission. (15 marks)

14. Related Topics to Study Next

• Article 324 and the ECI's plenary powers: this is the constitutional source of the ECI's authority and of the removal safeguard.
• Removal of SC/HC judges (Article 124(4), Judges (Inquiry) Act, 1968): the CEC's removal procedure borrows from it.
• Anoop Baranwal v. Union of India (2023): the SC ruling on how the CEC and ECs should be appointed, which led to the 2023 Act.
• Special Intensive Revision (SIR) of electoral rolls and Forms 6/7/8: the Form 6 point in the affidavit connects to roll revision.
• Writs (quo warranto, Article 32): the remedies typically invoked against public office-holders.
• Model Code of Conduct and the ECI's quasi-judicial powers: ECI decisions that are often challenged.
• Comparing other constitutional bodies' removal procedures (CAG, UPSC members): a common Prelims comparison.

15. NCERT Concepts to Revise

• Chief Election Commissioner (Polity): The affidavit is about restraining the CEC and the CEC's special protection from removal.
• Removal of judges (Polity): The CEC's removal is pegged to this procedure, which is the core of the security-of-tenure argument.
• Election Commissioners (Polity): The two ECs have different removal protection from the CEC and take part in collective decisions.
• Election Commission of India (Polity): The case asks whether this constitutional body works collectively or under CEC primacy, and where its powers come from.
• Special majority (Polity): Removing the CEC needs this majority in Parliament, which shows how hard removal is.
• Judicial review (Polity): The Court must balance reviewing the ECI's functioning against the CEC's constitutional insulation.

16. Common Errors / Trap Areas

• CEC vs EC removal: Only the CEC has SC-judge-style protection [1]. Under the constitutional text, ECs are removed on the CEC's recommendation. Do not assume all three have equal protection.
• Wrong comparator for pay: Under the 2023 Act, service conditions are equated with the Cabinet Secretary [4]. Removal protection, however, is equated with an SC judge [1]. Aspirants often mix the two up.
• Wrong predecessor Act: The 2023 Act replaced the 1991 Act [3], not the Representation of the People Act, 1950 or 1951.
• Wrong ministry: The Act is administered by the Ministry of Law and Justice [2], not the Home Ministry.
• Form numbers: Form 6 is for inclusion in the roll [1]. Do not confuse it with the forms for deletion or correction.