EC tells Supreme Court the CEC can be removed only like a Supreme Court judge
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.
Published 27 October 2026. Written by Pratidin from the reports linked at the end; every fact checked by a separate review before publishing. How we work
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?
- 1 and 2 only
- 2 and 3 only
- 1 and 3 only
- 1, 2 and 3
Show answer
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.
Use this in UPSC Mains: previous-year questions
Recurring theme: Independence, structure and accountability of the Election Commission of India
- How to use this
Use the dispute over unanimity of SIR orders to show that internal decision-making, not only EVMs, now shapes public trust in the Commission.
- Petitions in 2026 alleged the CEC changed Form 6 without the two Election Commissioners; the ECI says orders of 24 June 2025, 27 October 2025 and 14 May 2026 were unanimous.
- Section 18 of the 2023 Act requires unanimity as far as possible and majority otherwise; recording dissents would strengthen trust.
- Election Commissioners are removable on the CEC's recommendation (Article 324(5)), so equal protection would make dissent safer.
- How to use this
Cite the ECI's defence of its SIR orders and Form 6 process when discussing its position while revising electoral rolls.
- The ECI told the Supreme Court in October 2026 that Form 6 was not amended because only the Centre can amend it.
- From 21 October 2026, the online application was split into Form 6 and a separate declaration.
Tests the basic structure of the Commission, which the affidavit's removal and decision-making arguments rest on.
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.
- 25 January 1950Election Commission established
- 16 October 1989Two Election Commissioners appointed for the first time
- January 1990Posts abolished; Commission becomes single-member again
- 1 October 1993Three-member structure restored
- 14 July 1995T.N. Seshan v. Union of India upholds the multi-member Commission and majority decisions
- 28 December 2023Assent to the CEC and Other ECs Act, 2023 (Act 49 of 2023)
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.
- Removed only like a Supreme Court judge
- Conditions of service cannot be varied to his disadvantage
- Section 11(2) of the 2023 Act repeats the rule
- Removed only on the CEC's recommendation
- No impeachment-style procedure
- Section 11(3) of the 2023 Act repeats the rule
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).
- 1MotionAn address for removal is moved in a House of Parliament
- 2InquiryParliament's law sets how misbehaviour or incapacity is investigated and proved (Article 124(5))
- 3Vote in each HouseMajority of total membership and two-thirds of members present and voting, in the same session
- 4Presidential orderThe President orders removal after both addresses
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.
Go deeper
Why it matters for UPSC
The removal of constitutional authorities, the multi-member Election Commission and the 2023 appointment law are standard GS2 topics. This affidavit ties them together with a live dispute over the Special Intensive Revision (SIR) of electoral rolls.
The core idea
Article 324 makes the Commission the guardian of elections. Its chief enjoys the strongest protection in the Constitution, the same as a Supreme Court judge, explained in Article 324(5) and removal of the CEC. The other Commissioners are protected less: they can be removed only on the CEC's recommendation. Inside the Commission, decisions are meant to be collective, which the Supreme Court confirmed in T.N. Seshan v. Union of India (1995). The present framework for appointment, term and decision-making comes from The CEC and ECs Act, 2023. The affidavit uses all three to argue that courts cannot restrain a sitting CEC on the basis of a newspaper report.
Numbers and dates to remember
- Affidavit: nearly 250 pages, filed late on 26 October 2026.
- SIR orders said to be unanimous: 24 June 2025, 27 October 2025, 14 May 2026.
- Online Form 6 and declaration split from 21 October 2026.
- Three-member Commission since 1 October 1993.
- 2023 Act: Act 49 of 2023, assent on 28 December 2023; six-year term or age 65.
Where to go next
- Article 324(5) and removal of the CEC: the exact shield the ECI relies on.
- T.N. Seshan v. Union of India (1995): why the CEC is not the boss of the Commission.
- The CEC and ECs Act, 2023: who appoints the Commissioners and how they decide.
Go deeper: independence for whom?
The framers gave the CEC a judge-like shield so that the government of the day could not remove an inconvenient umpire. The ECI's affidavit leans on that purpose: it says any court order restraining the CEC would be unlawful because only Parliament, through the process in Article 324(5) and removal of the CEC, can end his tenure.
The case for the ECI's position:
- Removal protection would mean little if any litigant could get a CEC sidelined through interim orders.
- The petitions, the ECI says, rest on one newspaper report that the petitioner himself called reportage needing verification.
- Section 18 of The CEC and ECs Act, 2023 already provides for majority decisions, and the ECI says the disputed SIR orders were unanimous.
The questions the petitions raise:
- The shield protects tenure. It does not say how decisions must be taken, and whether all three members really approved key orders is a question of fact.
- Because Election Commissioners can be removed on the CEC's recommendation, a Commissioner's dissent carries personal risk. That makes recorded dissent and transparent procedure more important.
- T.N. Seshan v. Union of India (1995) held that the CEC's protection does not make him superior inside the Commission. If one member acted alone, that would cut against the collective design the Court upheld.
Reform ideas often discussed: giving Election Commissioners the same removal protection as the CEC, recording and publishing dissents, and framing rules of business by unanimous decision under Section 18(1) of the 2023 Act.
Article 324(5) and removal of the CEC
The exact constitutional shield the ECI relies on.
In one line: Article 324(5) gives the Chief Election Commissioner a Supreme Court judge's protection, and makes other Commissioners removable only on his recommendation.
What the text says
Clause (5) lets Parliament, and subject to it the President, set the tenure and service conditions of Election Commissioners. Its first proviso says 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", and that his conditions of service cannot be varied to his disadvantage after appointment. Its second proviso says any other Election Commissioner or Regional Commissioner shall not be removed except on the recommendation of the CEC.
What 'like a judge' means
Under Article 124(4), a judge is removed by a presidential order after each House of Parliament, in the same session, passes an address supported by a majority of its total membership and two-thirds of members present and voting, on the ground of proved misbehaviour or incapacity.
Why it is in the news
The ECI cites this clause to argue that a court cannot restrain a sitting CEC.
Where to go next
T.N. Seshan v. Union of India (1995)
Why the CEC is not the boss of the Commission.
In one line: In 1995 the Supreme Court upheld the multi-member Election Commission and majority decision-making, and said the CEC is not superior to his colleagues.
Background
The Commission was single-member for most of its history. Two Election Commissioners were appointed on 16 October 1989, the posts were abolished in January 1990, and the three-member structure returned on 1 October 1993 through an ordinance, later an Act. CEC T.N. Seshan challenged it.
What the Court held
A five-judge bench headed by Chief Justice A.M. Ahmadi dismissed the challenge on 14 July 1995. The Constitution itself contemplates a multi-member body. Decisions should be unanimous where possible and by majority where members differ. The CEC's judge-like protection exists to secure the Commission's independence, and does not make him superior to the other Commissioners.
Why it is in the news
The petitions allege that the CEC acted without his colleagues; the ECI says key orders were unanimous.
Where to go next
The CEC and ECs Act, 2023
Who appoints the Commissioners and how they decide.
In one line: Act 49 of 2023 sets how the CEC and Election Commissioners are chosen, how long they serve and how the Commission takes decisions.
Appointment
A Search Committee headed by the Law Minister, with two Secretary-level members, prepares a panel of five (Section 6). The President appoints on the recommendation of a Selection Committee of the Prime Minister (chair), the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister (Section 7). This replaced the interim committee, which included the Chief Justice of India, set by the Supreme Court in Anoop Baranwal (2 March 2023).
Term, removal and protection
Six years or until 65, with no re-appointment (Section 9). Removal mirrors Article 324(5) (Section 11). Section 16 bars courts from entertaining civil or criminal proceedings against a serving or former CEC or Commissioner for acts done in official duty.
Decisions
Section 18: unanimity as far as possible, majority when members differ.
Where to go next
Take the 27 October 2026 quiz: 30 Prelims-style questions with answers