On the independence of the Election Commission

Free and fair elections are key to a successful and vibrant democracy, a maxim included in the Basic Structure of the Constitution via Indira Gandhi versus Raj Narain (1975). However, in recent times, the fairness of the electoral process in India has been under question for many reasons, culminating in a resolution by the Opposition alliance to remove the Chief Election Commissioner (CEC). These controversies centre around the issue of alleged ‘vote theft’, and the manipulation of electoral rolls in the much-talked about Special Intensive Revision (SIR). 

It has been alleged that the Election Commission (EC) has allowed massive irregularities in voter lists, specifically targeting minority and Opposition-supporting voters. It was alleged that the SIR in Bihar was rushed and designed to delete voters in order to target minorities. The names of approximately 65 lakh voters have been deleted during the SIR exercise which was challenged in the Supreme Court.

This is quite a casual way of doing away with a citizen’s ‘right to vote’. Adult franchise as provided in Article 326 of the Constitution is the bedrock of democracy. Any procedural impropriety would affect its merit and sanctity.  

On selecting the EC

The process of appointing election commissioners had caused controversy when the Government passed the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Office and Terms of Office) Act, 2023, which regulates the appointment and removal of the CEC and election commissioners, replacing the 1991 Act. The 2023 Act stipulates that election commissioners should be appointed by the President based on a selection committee comprised of the Prime Minister, a Union Minister and the Leader of Opposition. It was alleged that the passing of the Act was in contravention of the decision of the Supreme Court in Anoop Baranwal versus Union of India, 2023 in which the Court held that the Chief Justice of India should also be included in the committee.  However, this provision was removed which created a controversy on the grounds that the independence of the EC would be adversely affected. The Act has been challenged again in Jaya Thakur versus Union of India, 2024. The next hearing for the same is scheduled for March 2026. 

The Constitutional mandate

The Constitution of India, under Article 324, provides for a permanent Election Commission with powers of superintendence, direction and control of the elections of the President, Vice-President, Parliament and of the legislature of the States. This constitutional basis and permanency of the Commission creates a background for its independence. The 2023 Act provides that the CEC will hold office for six years or until the age of 65, whichever is earlier. By far the most significant provision ensuring independence of the EC is the provision for the removal of the CEC and other election commissioners. Clause (5) of Article 324 says that the CEC can be removed only in the manner prescribed for the removal of a Supreme Court judge under Article 124(4), which are either proved misbehaviour or incapacity. Under Article 324(5), the CEC’s conditions of service cannot be varied to their disadvantage during their tenure.

The removal of other election commissioners is done by the President on the advice of the CEC. However, the Supreme Court in Vineet Narain versus Union of India, 1997 held that the CEC shall not give his advice suo motu. This provision strikes a balance between the executive power and the independence of the election commissioners.  

The CEC’s position 

Article 324 provides for an EC with a CEC and other commissioners, and also includes a provision for regional commissioners. In 1989, the commission was made multi-member but the two additional posts were abolished in 1990. Again on October 1, 1993 after drawing strength from clause (2) of Article 324, it was made a multi-member commission permanently which was validated by the Supreme Court in T. N. Seshan versus Union of India (1995).  

Interestingly, Clause (3) of Article 324 provides that when any Election Commissioner is so appointed the CEC, he/she shall act as the Chairman of the EC. The language of Article 324 makes it crystal clear that the CEC is appointed and commissioned as the commissioner  having certain exclusive powers, and in case of making the Commission multi-member, he shall preside over the meeting as its chairman. The idea behind this provision is to ensure that the conduct of elections is done by an administrator and at the same time to make the decision of the Commission consensus-based or democratic. Such provisions also ensure the independence of this constitutional body.

The procedure to remove the CEC is very complex and rigorous. It is a quasi-judicial Parliamentary procedure. The complexity of the process ensures its independence from any possible arbitrary action by the government. While the Representation of the People Act of 1950 and 1951 focuses on electoral procedures, voter registration, and candidate qualifications, Section 11 of the CEC and other ECs (Appointment, Conditions of Service and Terms of Office) Act, 2023 gives the procedure to remove the CEC and other Commissioners.

For the removal of the CEC, Article 324 (5) shall be read with Article 124(4) in order to understand the grounds for removal and the procedure.  

Section 3 of the Judges (Inquiry) Act, 1968, deals with the investigation into misbehaviour or incapacity by a commission member. It says that if notice is given to the Lok Sabha, at least 100 members must sign, while in the case of the Rajya Sabha, the minimum number of signatories to such a motion shall not be less than 50. Following this, the Speaker or, as the case may be, the Chairman may admit or refuse the motion.  

The Speaker or Chairman thereafter constitutes a three-member committee comprising the Chief Justice of India or a Supreme Court Judge, the Chief Justice of a High Court and a distinguished jurist. 

In order to ensure coordination between the two Houses of Parliament, a provision is made that if the notice is given to both Houses on the same day, the committee shall be constituted only after both Houses accept the motion.  

Further, definite charges must be framed and communicated on which investigation needs to be conducted. The CEC should be given reasonable time and opportunity to present his statement of defence.  This is a provision which ensures the protection of the Doctrine of Natural Justice by way of protecting the ‘Rule of Fair Hearing’. This is again one of the most significant features of India’s Constitution. In the case of allegations of any physical or mental incapacity, medical examination by a medical board appointed by the Speaker or Chairman, as the case may be, needs to be conducted. 

The political angle 

Though the Opposition has said that it will adopt democratic tools to move the motion against the CEC, it is unlikely to get passed as the ruling alliance holds sufficient majority in Parliament. The ruling government has rejected the allegations of any bias. The moot point is that constitutional bodies must be well-respected by all, be it citizens, ruling parties or the Opposition; otherwise, it sends a wrong signal to the masses across the country. 

All political parties need to consider that constitutional or statutory bodies operate according to the provisions provided in the Constitution or in the respective statutes. While dissent against the actions of such bodies is not wrong, it should also be considered that the politicisation of the Constitution or constitutional bodies would be detrimental to Indian democracy.  

The political safeguard provided by the Constitution must be taken care of and any dilution would be politically sensitive mainly because it would affect fairness in the electoral process and in the balance of power between the Government and independent and credible democratic institutions. The rule of thumb in Indian democracy is that it thrives on a blend of liberality and command, by balancing the authority of the state with the liberty of its citizens. 

C.B. P Srivastava is President, Centre for Applied Research in Governance, Delhi. 

Published – February 24, 2026 08:30 am IST