Opposition Drafts Fresh Motion to Remove CEC Gyanesh Kumar, Testing Article 324(5)’s High Bar

The news

New Delhi. The Opposition will soon move a fresh notice in both Houses of Parliament to remove Chief Election Commissioner (CEC) Gyanesh Kumar, Congress sources told The Indian Express on Thursday, September 24. “The motion is being drafted with legal experts,” a source said, and notices will be submitted “on behalf of the joint Opposition”. This is what is new after this magazine’s cards of 18 to 24 September: the dispute has moved from reported objections inside the Election Commission of India (ECI) to a formal constitutional process. The trigger was The Indian Express investigation of Wednesday that Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi objected on record at least 14 times between October 2025 and August 2026 to decisions linked to the Special Intensive Revision (SIR) of electoral rolls, many of which, they said, were taken without their knowledge. The ECI’s press note called such notes part of its “decision-making process”. Removal of a CEC is loosely called impeachment. Under Article 324(5) he can be removed only “in like manner and on the like grounds as a Judge of the Supreme Court”: proved misbehaviour or incapacity, a notice signed by at least 100 Lok Sabha or 50 Rajya Sabha MPs, an inquiry committee, and a two-thirds majority of members present and voting in both Houses. No CEC has ever been removed. A notice of March 12, signed by 130 Lok Sabha and 63 Rajya Sabha MPs with seven charges, was dismissed on April 7, The Hindu reports; a 13-page Rajya Sabha notice of April 24, signed by 73 members with nine charges, is pending with Chairman C.P. Radhakrishnan. Leader of the Opposition Rahul Gandhi said “our elections are fundamentally broken” and urged Mr. Kumar to “turn approver”; the Congress Working Committee meets on September 29. BJP spokesperson Sudhanshu Trivedi said Section 21(3) of the Representation of the People Act, 1950 authorises the SIR and that ECI decisions rest on majority. The Cockroach Janta Party gave Mr. Kumar a 48-hour ultimatum to resign; five Left parties will protest from September 26 to October 2; and Supreme Court advocate Brajesh Singh sought the Attorney-General’s consent to bring criminal contempt against the CEC. The syllabus link is GS2: appointment to constitutional posts and the functioning of constitutional bodies.

Static syllabus linkage

1. Article 324(5) gives the CEC a judge’s security of tenure but leaves the other Election Commissioners dependent on him. Article 324(1) vests the superintendence, direction and control of the preparation of electoral rolls and the conduct of elections to Parliament, State legislatures and the offices of President and Vice-President in the Election Commission. Article 324(2) says the Commission consists of the CEC and such number of other Election Commissioners as the President may fix. Article 324(5) lets Parliament fix their conditions of service by law, but provides that the CEC shall not be removed except in like manner and on the like grounds as a Supreme Court judge, and that his conditions of service cannot be varied to his disadvantage after appointment. Its proviso adds that any other Election Commissioner or Regional Commissioner shall not be removed except on the recommendation of the CEC. Per The Indian Express, Section 11 of the 2023 Act repeats this framing, so the asymmetry is both constitutional and statutory.
2. Removing a CEC borrows the entire machinery for removing a Supreme Court judge. Article 124(4) allows a Supreme Court judge to be removed only by an order of the President after an address by each House, supported in the same session by a majority of the total membership of that House and by not less than two-thirds of members present and voting, on the ground of proved misbehaviour or incapacity. Article 124(5) lets Parliament regulate the procedure, which it did through the Judges (Inquiry) Act, 1968. Under that Act a notice of motion must be signed by at least 100 Lok Sabha members or 50 Rajya Sabha members, and the Speaker or Chairman may admit or refuse it. If admitted, a three-member committee of a Supreme Court judge, a High Court Chief Justice and a distinguished jurist frames charges and investigates; if it finds no misbehaviour or incapacity, the motion goes no further.
3. The 2023 Act moved appointments from executive choice to a committee in which the executive still holds the majority. In Anoop Baranwal v. Union of India (2023), a five-judge Constitution Bench directed that until Parliament made a law, the CEC and Election Commissioners be appointed on the advice of a committee of the Prime Minister, the Leader of the Opposition in the Lok Sabha (or leader of the largest Opposition party) and the Chief Justice of India. Parliament then enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, replacing the 1991 law. Its selection committee is the Prime Minister, the Leader of the Opposition and a Union Cabinet Minister nominated by the Prime Minister, with a search committee headed by the Law Minister preparing a panel of names. Tenure is six years or until the age of 65, whichever is earlier, and the Act also shields serving and former Commissioners from civil or criminal proceedings for acts done in the discharge of official duty.
4. A multi-member Commission decides by majority, and no removal motion against a judge has ever succeeded. The ECI was a single-member body until 1989 and became permanently multi-member in 1993. In T.N. Seshan v. Union of India (1995), a five-judge Bench upheld the multi-member Commission, holding that it must decide through collective deliberation and, where members differ, by majority, a rule now in the statute. Parliament has never completed the removal of a judge: the motion against Justice V. Ramaswami failed in the Lok Sabha in 1993 for want of the special majority, and Justice Soumitra Sen resigned in 2011 after the Rajya Sabha voted for his removal but before the Lok Sabha could vote. The proviso to Article 324(5) was tested in 2009 when CEC N. Gopalaswami recommended the removal of Election Commissioner Navin Chawla; the government did not act on it and Mr. Chawla later became CEC.

Why UPSC loves this

1. GS2 names this story almost word for word. The syllabus asks about appointment to various constitutional posts and the powers, functions and responsibilities of constitutional bodies. Mains has repeatedly asked about the independence and credibility of the Election Commission, especially after the 2023 Act and the controversies over electronic voting machines and roll revisions. A question on whether the removal protection of the CEC should extend to the Election Commissioners is the obvious next step.
2. Prelims tests the removal and composition clauses. UPSC has asked about the composition of the ECI and its role in party splits and symbols, and it routinely tests the removal procedure for Supreme Court judges and constitutional functionaries. The difference between the CEC’s protection and that of the other Commissioners, and the signature thresholds under the Judges (Inquiry) Act, 1968, are classic statement-based traps.
3. Essay and ethics papers reward the institutional-trust angle. Essay topics on democracy and institutions, and GS4 questions on the probity of public officials, can draw on this episode: dissent recorded inside a constitutional body, a public demand for accountability, and a removal process deliberately built to be difficult.

Analysis

1. The Commissioners who dissented are less protected than the CEC they dissented against. The Constitution guards the CEC against the government, but under the proviso to Article 324(5) the other two Commissioners can be removed on his recommendation. That is why today’s story is unusual: Mr. Sandhu and Mr. Joshi recorded objections against the one officer who can set their removal in motion. A design meant to protect the institution from the executive does not protect a minority inside the institution from its head. The Law Commission’s 255th Report on electoral reforms (2015) recommended equal removal protection for all Commissioners. The counter-view is that a CEC needs some disciplinary check over colleagues; but the 2009 Gopalaswami–Chawla episode showed that the check can be used, or ignored, for partisan ends either way.
2. The motion will almost certainly fail, and that is not the point. The arithmetic is plain: a two-thirds majority of those present and voting in both Houses, plus a majority of total membership, is out of reach for the Opposition. Two notices have already stalled, one dismissed on April 7 and one pending since April 24, and the presiding officers assigned no reasons for rejecting the first. The value of a third notice is to force a formal record of specific charges and to make the presiding officers decide publicly. The risk is that repeated motions that never reach an inquiry committee turn a protection built for independence into a routine political weapon, which weakens the bar for every future CEC.
3. Both op-eds are right about different things. Gaurav Bhatia argues in The Indian Express that Section 18 of the 2023 Act lets the Commission decide by majority, that a 2:1 order has no legal infirmity, and that Seshan ended the idea that collegial bodies need unanimity; that is correct law. But the complaint reported is not that the two Commissioners were outvoted. It is that decisions were allegedly taken without their knowledge, and Seshan’s own test is ‘collective deliberation’, which a unilateral decision does not satisfy. Shashi Tharoor’s column rests on outcomes rather than procedure: 54.6% of Delhi’s electors struck off or served notices, and 91% of 82,000 adjudicated West Bengal ‘logical discrepancy’ cases found wrongly deleted. A fair reading is that the SIR may be lawful, as the Supreme Court has held, and still be badly run.
4. An algorithm that removes voters cannot be a trade secret. The Hindu reports that ‘logical discrepancies’ are flagged by a centralised AI system on ERONet, the Electoral Roll Officers’ Network, using up to 11 categories, such as an age gap of less than 15 years between a voter and a parent or more than six siblings linked to one parent. The term has never been defined in the ECI’s May 2026 notice or its June 2025 SIR order, and an RTI request for the software’s details was refused on grounds of ‘commercial confidence’. Section 8(1)(d) of the RTI Act does exempt commercial confidence, but only where disclosure would harm a third party’s competitive position and no larger public interest warrants it. When a rule decides who may vote, the rule is the public interest, and administrative law requires that a person affected can know the ground of the decision. The Commission can protect source code while publishing the criteria, the thresholds and the error rates.
5. Criminal prosecution talk misreads how the Constitution disciplines a CEC. Priyanka Gandhi Vadra asked why a CEC should have legal protection and demanded that he be ‘tried for treason’. Indian criminal law has no offence called treason by that name, and the 2023 Act expressly bars proceedings for acts done in the discharge of official duty. The constitutional route for misconduct in office is removal, which is why the Opposition’s motion is the serious move and the rhetoric is not. Equally, the BJP’s reply that the Congress lacks standing because of its own past appointments answers nothing about the present decisions. The institution loses when both sides argue about each other rather than about the recorded objections.

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