The Lift Line
“It therefore cannot simply be described as a blanket immunity from arrest.”
Why This Explainer Matters for Your Exam
This is not an opinion piece: it is The Hindu’s Sunday explainer, and it answers a Prelims-grade question that the Election Commission controversy has made live. With Opposition parties seeking the removal of Chief Election Commissioner (CEC) Gyanesh Kumar, and some calling for criminal action, the explainer sets out what the Constitution and the 2023 Act actually allow. Our earlier deep dive on the Supreme Court’s split verdict covered the appointment side (Anoop Baranwal, the 2023 Act and the Selection Committee); this write-up covers only removal and immunity.
GS Paper 2: Appointment to various constitutional posts, powers, functions and responsibilities of constitutional bodies; Election Commission; comparison of constitutional safeguards.
| Concept | Meaning | Why it is testable |
|---|---|---|
| Security of tenure | Protection from removal except by a demanding procedure | The core of the independence of constitutional bodies |
| Proved misbehaviour or incapacity | The only grounds for removing a Supreme Court judge (Article 124(4)) | Applied to the CEC by Article 324(5) |
| Special majority | A majority of the total membership of the House and two-thirds of those present and voting | Required in each House for removal |
| Statutory immunity | A bar on legal proceedings for official acts, created by a law | Section 16 of the 2023 Act |
| Collegial body | A body whose members decide together, by majority where they differ | The Election Commission since 1993 |
Background and Context
The controversy (background). On 23 September 2026, Opposition parties sought the removal of the CEC after an Indian Express investigation reported that two of the three Commissioners, Sukhbir Singh Sandhu and Vivek Joshi, had formally recorded objections at least 14 times over ten months. The same day, a Division Bench of Justices Dipankar Datta and S.C. Sharma gave a split verdict on the Union government’s plea to refer the challenge to the 2023 Act to a Constitution Bench.
The appointment law (background). The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, in force since January 2024, replaced the interim committee that the Supreme Court had set up in Anoop Baranwal v. Union of India (March 2023). A Search Committee headed by the Union Law Minister prepares a panel of five; a Selection Committee of the Prime Minister, the Leader of the Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister recommends; the President appoints.
The Analysis
1. The CEC is protected like a Supreme Court judge. Article 324(5) 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”. The grounds are proved misbehaviour or incapacity (Article 124(4)); the method is parliamentary.
| Step | What happens |
|---|---|
| 1. Notice of motion | Signed by at least 100 Lok Sabha members or 50 Rajya Sabha members (Judges (Inquiry) Act, 1968) |
| 2. Admission | The Speaker or Chairman may admit or refuse the motion |
| 3. Inquiry | If admitted, a three-member committee (a Supreme Court judge, a High Court Chief Justice and a distinguished jurist) investigates |
| 4. Address | If misbehaviour or incapacity is found, each House must pass the address by a majority of its total membership and two-thirds of members present and voting, in the same session |
| 5. Removal | The President orders removal only after both Houses have done so |
2. The other Commissioners are protected less. Under the proviso to Article 324(5), an Election Commissioner or Regional Commissioner cannot be removed “except on the recommendation of the Chief Election Commissioner”. Their tenure depends on the CEC, not on Parliament. In 2009, CEC N. Gopalaswami recommended the removal of Election Commissioner Navin Chawla; the Government did not act on it, and Chawla later became CEC.
3. Section 16 bars court proceedings, not arrest as such. Section 16 of the 2023 Act says no court shall entertain or continue civil or criminal proceedings against a person who “is or was” a CEC or EC for any act, thing or word done or spoken while acting, or purporting to act, in the discharge of official duty. Two features matter: it covers former Commissioners too, and it is tied to official duty. It does not use the words arrest, investigation or police custody, so, the explainer concludes, it cannot simply be called a blanket immunity from arrest.
4. The design balances two risks. Strong tenure protects the CEC from a hostile executive; but because the CEC can set the removal of colleagues in motion, a collegial body can become hierarchical in practice. That is why the Law Commission’s 255th Report (2015) recommended equal protection for all Commissioners.
The precision that earns marks. Other offices share the Supreme Court judge’s removal procedure: the CEC (Article 324(5)) and the CAG (Article 148(1)) are removable “in like manner and on the like grounds” as a Supreme Court judge, and High Court judges are removed by the same parliamentary method (Article 217(1)(b)). By contrast, the Chairman and members of the UPSC are removed by the President after a Supreme Court inquiry on a reference (Article 317), with no parliamentary vote.
Data and Institutions Vault
Prelims-grade facts:
Removal and protection:
- Article 324(5): the CEC is removable only like a Supreme Court judge; ECs and Regional Commissioners only on the CEC’s recommendation.
- Article 124(4): grounds are proved misbehaviour or incapacity; each House must pass the address by a special majority.
- Judges (Inquiry) Act, 1968: a notice needs 100 Lok Sabha or 50 Rajya Sabha members; a three-member inquiry committee.
- Section 16 of the 2023 Act bars civil or criminal proceedings for official acts of a present or former CEC or EC.
Appointment (background):
- Anoop Baranwal v. Union of India (2023): interim committee of PM, Leader of the Opposition and CJI.
- The 2023 Act (in force January 2024): Search Committee under the Law Minister; Selection Committee of PM, Leader of the Opposition and a Cabinet Minister.
Prelims, the traps:
- The CEC is not removed by the President on his own; Parliament must first pass the address.
- UPSC members are removed after a Supreme Court inquiry (Article 317), not by parliamentary address.
⚠️ Watch the trap: security of tenure protects the office from removal; it is not immunity from the law. Section 16 is a separate, statutory bar limited to official acts.
The Debate
For the present design. A CEC who can be removed only by a special majority in both Houses cannot be dismissed by the government of the day for an unwelcome decision. Section 16 lets Commissioners take hard calls during elections without fear of vexatious litigation afterwards.
The complication. The weaker protection for Election Commissioners can make a three-member body answer to one member. And protection that continues after a Commissioner leaves office, for anything “purporting” to be official, could be read broadly enough to shield misconduct.
The balanced verdict. Give all Commissioners the same security of tenure, keep an independent element in appointments, and let courts read Section 16 narrowly: protection for good-faith official acts, no shelter for conduct outside official duty.
How to Think About This
Separate tenure from immunity. Security of tenure answers “who can remove this person, and how?”; immunity answers “can this person be sued or prosecuted?”. Many answers blur the two. When you write about any constitutional office (CEC, CAG, judges, Governors under Article 361), deal with each question separately.
Diagram-in-Words
Takeaway Box
- CEC: removable only like a Supreme Court judge (Article 324(5)), on proved misbehaviour or incapacity.
- Procedure: Judges (Inquiry) Act, 1968; special majority in both Houses; then the President.
- Election Commissioners: removable only on the CEC’s recommendation.
- Section 16: no civil or criminal proceedings for official acts of present or former Commissioners; not a blanket bar on arrest.
- Reform idea: equal protection for all Commissioners.
Sources: The Hindu, Constitution of India, India Code, Judges (Inquiry) Act, 1968
Source: Can the Chief Election Commissioner Be Removed? Article 324(5), the Judges (Inquiry) Act and the Limits of Section 16 — Ujiyari.com | Free UPSC & State PCS Editorial Analysis
