2023 Law Shields CEC And Election Commissioners; Only Parliament Can Remove CEC

As opposition parties threaten the impeachment of Chief Election Commissioner (CEC) Gyanesh Kumar and action against the two election commissioners if the INDIA bloc comes to power, here is a look at the law on how they can be removed and whether they can be taken to court for decisions taken by them while in office.

Clause 16 of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 grants immunity to the CEC and ECs from any legal action for decisions taken while in office.

"... no court shall entertain or continue any civil or criminal proceedings against any person who is or was a Chief Election Commissioner or an Election Commissioner for any act, thing or word, committed, done or spoken by him when, or in the course of acting or purporting to act in the discharge of his official duty or function," the clause reads.

Congress leader Rahul Gandhi has threatened "stern action" against Kumar and the two ECs over allegations of "vote chori" (vote theft) through the Special Intensive Revision (SIR) of the electoral rolls in Bihar, when the INDIA bloc comes to power.

Gandhi's threats came days after the CEC served him a seven-day ultimatum to submit a signed affidavit to back his vote-theft claims and said or else, his allegations will be considered invalid.

According to Clause 11(1) of the Act, the CEC or an EC can, at any time, by writing under his hand addressed to the president, resign from his office.

Clause 11(2) states that the CEC cannot be removed from his office except in like manner and on like grounds as needed for the removal a Supreme Court judge.

Supreme Court and high court judges can be removed only through a motion passed by both houses of Parliament.

A motion supported by 50 MPs of the Rajya Sabha or 100 MPs of the Lok Sabha has to be moved in Parliament and passed by the House with a two-thirds majority of those present.

The law says the other ECs cannot be removed from office except on the CEC's recommendation.