# EC tells Supreme Court the CEC can be removed only like a Supreme Court judge

URL: https://upsc.help/current-affairs/2026-10-27/eci-affidavit-cec-removal-shield/
Date: 27 October 2026 (2026-10-27)
Source: The Hindu, Page 1
UPSC papers: GS2
Publisher: upsc.help (Pratidin), free and open-source UPSC Civil Services current affairs. Not affiliated with UPSC. Every fact was checked against the source reports by a separate review before publishing.

**In one line:** The Election Commission has told the Supreme Court that a plea to stop the Chief Election Commissioner from working cannot succeed, because the Constitution lets only Parliament remove him.

The Election Commission of India (ECI) has filed a joint counter-affidavit of nearly 250 pages in the Supreme Court, approved by Chief Election Commissioner (CEC) Gyanesh Kumar and Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi. Filed late on 26 October 2026, it answers petitions, including pleas by the Leader of the Opposition in the Lok Sabha and other INDIA bloc leaders, that question the CEC's functioning and seek to restrain him from working. The ECI says the pleas are not maintainable because they rest on a newspaper report, and "newspaper reports cannot be considered as evidence in the eyes of law". It adds that the petitions do not dispute that the CEC was lawfully appointed, so a prayer for quo warranto (a writ asking by what authority a person holds a public office) is misconceived.

The core legal claim rests on Article 324(5) of the Constitution: the CEC "shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court". Section 11(2) of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 repeats this. Under Article 124(4), a Supreme Court judge can be removed only by a presidential order after each House of Parliament passes an address by a special majority on the ground of proved misbehaviour or incapacity. The ECI argues that any order stopping the CEC from functioning would be unlawful and would clash with Section 18 of the 2023 Act, which says the Commission shall act unanimously as far as possible and by majority when members differ.

The petitions allege that the CEC took decisions, including changes to Form 6 (the voter registration form), without the approval of the two Election Commissioners. The affidavit says three Special Intensive Revision (SIR) orders, dated 24 June 2025, 27 October 2025 and 14 May 2026, were approved by all three members, and that Form 6 was not amended because only the Centre can amend it. It concedes the online display could be read as an amendment, and says that from 21 October the online application has been split into Form 6 and a separate declaration. On 5 October the Supreme Court had said it would examine the Commission's decisions and annul any not in accordance with law. The Court must now weigh the CEC's constitutional protection against claims about how the three-member body actually took its decisions.

## Prelims facts

- Article 324(5) says the CEC can be removed only in like manner and on the like grounds as a Supreme Court judge, and his conditions of service cannot be varied to his disadvantage after appointment.
- Other Election Commissioners can be removed only on the recommendation of the CEC, under the second proviso to Article 324(5) and Section 11(3) of the 2023 Act.
- Section 18 of the 2023 Act requires the Commission to transact business unanimously as far as possible, and by majority when members differ.
- The ECI's affidavit says SIR orders of 24 June 2025, 27 October 2025 and 14 May 2026 were unanimous and that Form 6 was never amended.
- In T.N. Seshan v. Union of India (1995), the Supreme Court upheld the multi-member Commission and held that the CEC's removal protection does not make him superior to the other Commissioners.

## Quick recall

- **Which Article vests the superintendence, direction and control of elections in the Election Commission?** Article 324(1).
- **How can the Chief Election Commissioner be removed?** Only in like manner and on the like grounds as a Supreme Court judge (first proviso to Article 324(5)).
- **How can an Election Commissioner be removed?** Only on the recommendation of the Chief Election Commissioner (second proviso to Article 324(5); Section 11(3) of the 2023 Act).
- **What does Section 18 of the 2023 Act say about decisions?** Business is transacted unanimously as far as possible; when members differ, the majority view prevails.
- **Who sits on the Selection Committee under the 2023 Act?** The Prime Minister (chair), the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister.
- **Term of the CEC and ECs under the 2023 Act?** Six years or until age 65, whichever is earlier; no re-appointment.
- **When did the Commission become three-member for good?** 1 October 1993.
- **Which three SIR orders does the ECI say were unanimous?** Orders dated 24 June 2025, 27 October 2025 and 14 May 2026.

## Prelims practice question

With reference to the Election Commission of India, consider the following statements:
1. The Chief Election Commissioner can be removed from office only in like manner and on the like grounds as a Judge of the Supreme Court.
2. An Election Commissioner can be removed from office only on the recommendation of the Chief Election Commissioner.
3. Under the 2023 Act, the Chief Justice of India is a member of the Selection Committee that recommends the Chief Election Commissioner.
Which of the statements given above are correct?

(a) 1 and 2 only
(b) 2 and 3 only
(c) 1 and 3 only
(d) 1, 2 and 3

Answer: (a) 1 and 2 only. Statements 1 and 2 restate the first and second provisos to Article 324(5), repeated in Section 11 of the 2023 Act. Statement 3 is wrong: Section 7 of the 2023 Act names the Prime Minister (chair), the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister. The Chief Justice of India was part of the interim committee set by the Anoop Baranwal judgment (2023) but not of the Act's committee.

## UPSC previous-year questions this connects to

- UPSC Mains 2018, GS2: In the light of recent controversy regarding the use of Electronic Voting Machines (EVM), what are the challenges before the Election Commission of India to ensure the trustworthiness of elections in India? (https://upsc.help/pyq/q002-light-recent-controversy-regarding-use-electronic-voting/)
  How to use this story in the answer: Use the dispute over unanimity of SIR orders to show that internal decision-making, not only EVMs, now shapes public trust in the Commission.
- UPSC Mains 2026, GS2: Is the right to vote a fundamental right? Discuss the position of the Election Commission of India while undertaking the revision of electoral rolls. Can it also examine the question of citizenship of the voters? (https://upsc.help/pyq/q000-right-vote-fundamental-right-position-election-commission/)
  How to use this story in the answer: Cite the ECI's defence of its SIR orders and Form 6 process when discussing its position while revising electoral rolls.
- UPSC Prelims 2017, Prelims: Consider the following statements: 1. The Election Commission of India is a five-member body. 2. Union Ministry of Home Affairs decides the election schedule for the conduct of both general elections and bye-elections. 3. Election Commission resolves the disputes relating to splits/mergers of recognised political parties. Which of the statements given above is/are correct? (a) 1 and 2 only (b) 2 only (c) 2 and 3 only (d) 3 only (https://upsc.help/pyq/q004-consider-following-statements-1-election-commission-india/)

## Mains practice question

The Constitution shields the Chief Election Commissioner's tenure but makes the removal of other Election Commissioners depend on his recommendation. Examine how this design affects the functioning of the Election Commission as a multi-member body. (250 words)

### Model answer

The Election Commission of India (ECI) has been a three-member body since 1993, but Article 324(5) protects its members unequally. The October 2026 affidavit on the Chief Election Commissioner's (CEC) functioning shows why this matters.

## The constitutional design
- **CEC:** removable only like a Supreme Court judge (Article 324(5); Article 124(4) special majority in both Houses on proved misbehaviour or incapacity). Repeated in Section 11(2) of the 2023 Act.
- **Election Commissioners:** removable only on the CEC's recommendation (second proviso to Article 324(5); Section 11(3)).
- **Decision rule:** Section 18 of the 2023 Act requires unanimity as far as possible and majority when members differ.

## How it shapes functioning
- **Independence from the executive:** the CEC cannot be removed by the government at will, which protects poll management.
- **Imbalance within:** an Election Commissioner who dissents depends on the CEC for job security, which may chill dissent.
- **Accountability gap:** disputes over whether all members approved decisions, such as SIR orders and Form 6 changes, reach courts on the basis of media reports, as the affidavit itself contests.
- **Judicial position:** *T.N. Seshan v. Union of India* (1995) upheld majority decisions and held that the CEC's protection does not make him superior to other Commissioners.

## Way forward
- Give Election Commissioners the same removal protection as the CEC.
- Record dissents and publish key decisions with voting details.
- Frame transparent rules of business under Section 18(1).

A Commission whose members are equally secure and whose decisions are visibly collective would better serve the trust that Article 324 places in it.

## The basics

## Why this matters
The Election Commission of India (ECI) runs every election to Parliament, State legislatures and the offices of President and Vice-President. A fight over who may stop its chief from working goes to the heart of how the Constitution protects the referee of Indian democracy.

## What Article 324 says
Article 324(1) vests the "superintendence, direction and control" of electoral rolls and elections in the Commission. Article 324(2) says it consists of the Chief Election Commissioner and "such number of other Election Commissioners, if any, as the President may from time to time fix". So the Constitution allows, but does not require, a multi-member body.

## Two levels of protection
The first proviso to Article 324(5) gives the CEC the same removal shield as a Supreme Court judge: removal only by a presidential order after each House of Parliament passes an address by a special majority on the ground of proved misbehaviour or incapacity. The second proviso protects the other Commissioners differently: they can be removed only on the CEC's recommendation. See Article 324(5) and removal of the CEC.

## How the three members decide
Section 18 of the 2023 Act says the Commission shall transact business unanimously "as far as possible" and by majority when members differ. In 1995 the Supreme Court held that the CEC's removal shield exists to secure independence and does not make him superior inside the Commission. See T.N. Seshan v. Union of India (1995).

## The present dispute
Petitioners say the CEC took decisions without his colleagues. The ECI's affidavit replies that SIR orders were unanimous and that a court cannot restrain a CEC who can only be removed by Parliament. The appointment law behind all this is explained in The CEC and ECs Act, 2023.

## Sources

- https://www.socialnews.xyz/2026/10/26/cec-can-be-removed-only-like-sc-judge-orders-on-sir-were-unanimous-eci-tells-apex-court/
- https://www.outlookindia.com/national/cec-removal-only-like-supreme-court-judge-eci-tells-supreme-court-on-gyanesh-kumar
- https://www.thedailyjagran.com/india/news/election-commission-tells-supreme-court-in-in-15-point-affidavit-plea-to-restrain-cec-gyanesh-kumar-not-maintainable-10334089
- https://www.scobserver.in/wp-content/uploads/2024/03/Chief-Election-Commissioner-and-Other-Election-Commissioner-Act-2023.pdf
- https://www.constitutionofindia.net/articles/article-324-superintendence-direction-and-control-of-elections-to-be-vested-in-an-election-commission/
- https://www.casemine.com/commentary/in/supreme-court-upholds-multi-member-election-commission:-key-legal-principles-established/view