Essay · Section A25 September 2026

Security of tenure protects the office, not the officer.

In the seventeenth century, English judges held office “at the King’s pleasure”, and the Stuart kings used that pleasure freely, dismissing judges whose rulings displeased them. When Parliament settled the succession to the throne in the Act of Settlement of 1701, it changed the rule: judges would hold office quamdiu se bene gesserint, “during good behaviour”, and could be removed only upon an address of both Houses of Parliament. The clause was not a reward for judges. It was a guarantee to the next citizen who went to court against the Crown that the judge in front of him could not be sacked for ruling in his favour. Alexander Hamilton made the same argument in Federalist No. 78 (1788): permanent tenure matters because “nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.”

India is now testing that old idea. The Opposition has announced a motion in both Houses of Parliament to remove Chief Election Commissioner Gyanesh Kumar, accusing the Commission of partisanship in the Special Intensive Revision of the rolls; the ruling party replies that the revision is legally sound and that the Commission decides by majority. This essay does not judge that dispute, which belongs to Parliament and the courts. It asks a prior question: whom is security of tenure meant to protect? It argues that tenure is held in trust for the office and the citizens who depend on it; that the trust binds the government, the opposition and the officer alike; and that when it is treated as the office-holder’s property, or as a prize to be won by numbers, it fails the public it was meant to serve.

The Constitution gives the Chief Election Commissioner the strongest protection it has. Article 324(5) says he shall not be removed “except in like manner and on the like grounds as a Judge of the Supreme Court”, and that his conditions of service shall not be varied to his disadvantage after appointment. The Comptroller and Auditor General is protected in the same way under Article 148. Under Article 124(4) and the Judges (Inquiry) Act, 1968, a motion needs the signatures of at least 100 members of the Lok Sabha or 50 of the Rajya Sabha; if it is admitted, a three-member committee inquires into the charges; only if misbehaviour or incapacity is proved can each House vote, and then it needs a majority of its total membership and two-thirds of those present and voting. The design is deliberate: no government can remove an inconvenient umpire on its own, and no opposition can remove one without proof and a broad consensus.

The record shows how high the bar is. No judge of the Supreme Court has ever been removed. In 1993 the motion against Justice V. Ramaswami failed in the Lok Sabha when the ruling party abstained. In 2011 the Rajya Sabha voted to remove Justice Soumitra Sen of the Calcutta High Court, and he resigned before the Lok Sabha could vote. In 2018 the Rajya Sabha Chairman refused at the threshold to admit a notice against Chief Justice Dipak Misra. Critics call removal a dead letter; it can equally be said that the clause works, because it makes the accuser prove misconduct rather than merely dislike decisions.

Why protect the office so heavily? Because the power to remove is the power to threaten, and history is full of governments that used it. In 1988 Malaysia’s Lord President, Tun Salleh Abas, was removed by a tribunal convened after he clashed with the executive; twenty years on, the Malaysian government made ex gratia payments to him and the other judges it had removed or suspended, in effect admitting the wrong. In 2007 General Pervez Musharraf suspended Pakistan’s Chief Justice Iftikhar Muhammad Chaudhry, and it took a lawyers’ movement, a reinstatement, a second removal under emergency rule and two years before he was finally restored in 2009. The opposite lesson comes from the United States. In 1804 the House of Representatives impeached Justice Samuel Chase, largely for his partisan conduct on the bench; in 1805 the Senate acquitted him. Since then American judges have not been removed for the content of their rulings.

The Indian arrangement has one revealing gap. The first proviso to Article 324(5) protects only the Chief Election Commissioner; the other Election Commissioners can be removed on his recommendation. In January 2009 Chief Election Commissioner N. Gopalaswami recommended to the President that Election Commissioner Navin Chawla be removed; the government declined, and Chawla became Chief Election Commissioner that April. Protection that one member of a multi-member body holds over his colleagues protects a person, not the Commission. The Law Commission, in its 255th Report on electoral reforms (2015), recommended that the Election Commissioners be given the same protection as the Chief. With two Election Commissioners now reported to have recorded repeated objections inside the Commission, that recommendation reads as a safeguard for dissent.

The counter-position deserves a fair hearing. If removal is almost impossible, then an officer who loses public trust stays on, and a protection designed for independence becomes a kind of immunity. Under the 2023 Act, the Chief Election Commissioner is selected by a committee of the Prime Minister, a Union Cabinet Minister and the Leader of the Opposition, so the government’s nominees are always a majority; if the umpire is chosen by one side and can be removed by none, tenure seems to protect the choice rather than the office. The opposite warning is equally real: a removal motion with no prospect of success can become theatre, eroding an institution by accusation where proof is lacking.

Both objections point at the same mistake, which is treating tenure as something that belongs to a person. The answer is not to make removal easier, which would hand every future government a lever over every future umpire. It is to make the rest of the office trustworthy. Appointment should be by a body that no single side controls, since trust lost at the gate cannot be restored by locks on the exit. The Election Commissioners should have the same protection as the Chief. Accountability should come through the ordinary channels: reasons given for major decisions, dissents recorded and disclosed after a decent interval, and the discipline of law, since the Supreme Court held in Mohinder Singh Gill v. Chief Election Commissioner (1978) that even the Commission’s plenary power under Article 324 must be exercised fairly and within the law. And a removal motion should be what the Constitution says it is, an inquiry into proved misbehaviour or incapacity, never a verdict on decisions one side dislikes.

The trust also binds the officer. An office-holder who cannot be dismissed is freer than anyone in public life to explain himself, to allow colleagues to disagree, and to step aside where he has a personal stake. Tenure removes the fear of losing office; it does not remove the duty to justify the office. The officer who reads Article 324(5) as a shield for himself has misread it. It is a shield for the voter who will one day depend on him to rule against the powerful.

The Act of Settlement did not make English judges wise; it made them safe enough to be wise. That is the right measure for India’s election umpire too. The chair must be protected, because the next person to sit in it may have to rule against the government that appointed him. But the person in the chair must remember that the protection was never his. It is lent to him by the citizens, and it is repaid in reasons, openness and restraint.