The Question
In recent weeks a question has been asked repeatedly in public debate: can the Supreme Court of India remove Mr. Gyanesh Kumar, the Chief Election Commissioner, from office? Petitions are pending before the Supreme Court concerning the Election Commission, and demands for the CEC’s removal have been raised in Parliament and outside it. This article answers the legal question only. It does not deal with the merits of any pending case or with the conduct of any person.
Why the Answer Is No
Article 324(5) of the Constitution says that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court. Article 124(4) says that a Judge of the Supreme Court can be removed only by an order of the President, after both Houses of Parliament pass an address by a special majority, on the ground of proved misbehaviour or incapacity. Parliament has made the Judges (Inquiry) Act, 1968 to regulate the inquiry.
Section 11(2) of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 repeats the same rule.
The Constitution gave the CEC this protection on purpose. The Commission must be able to decide against the Government of the day without fear of losing office. The Supreme Court said so in T.N. Seshan v. Union of India, (1995) 07 SC CK 0148 and again in Anoop Baranwal v. Union of India. The protection belongs to the office, not to the person.
Articles 32 and 142 do not change this. Article 32 is a remedy for enforcement of fundamental rights, and Article 142 supplements the Court’s power to do complete justice in a cause; it cannot be used to override an express constitutional provision (Supreme Court Bar Association vs Union of India and Another, (1998) 04 SC CK 0099).
What the Supreme Court Can and Cannot Do
What the Court can do
- Quo warranto: examine whether a person was lawfully appointed. If an appointment was made in breach of the Constitution or the Act, the Court can declare that the office was never validly held. That is a finding on the legality of the appointment, not a removal for misconduct, and the Court does not examine suitability or conduct in such a petition.
- Validity of the 2023 Act: decide whether the Act itself is valid. The challenge is pending and the Court has so far refused to stay the Act. Even if the Act were struck down, the Court may protect appointments already made, as it did in Anoop Baranwal.
- Manner of functioning: declare how the Commission must function. The law requires the three-member Commission to decide unanimously as far as possible and otherwise by majority, and the Court can enforce that rule.
What the Court cannot do
- It cannot remove the CEC.
- It cannot suspend him.
- It cannot order him to resign.
On 5 October 2026 a Bench headed by the Chief Justice of India issued notice on petitions concerning the Commission’s decision-making but declined to suspend the CEC. That order is consistent with the constitutional position described here.
The Only Procedure for Removal
If Parliament wishes to remove the Chief Election Commissioner, the procedure is as follows:
- Notice of motion. A notice of motion signed by at least 100 members of the Lok Sabha or 50 members of the Rajya Sabha is given to the Speaker or the Chairman.
- Admission. The Speaker or Chairman may admit or refuse it.
- Inquiry Committee. If admitted, a three-member committee is constituted: a Supreme Court Judge, a High Court Chief Justice and a distinguished jurist.
- Inquiry and report. The committee frames charges, hears the CEC, takes evidence and submits a report. If it finds no misbehaviour or incapacity, the matter ends.
- Vote in both Houses. If the committee finds him guilty, each House must pass the motion by a majority of its total membership and two-thirds of members present and voting, in the same session.
- Order of the President. The address then goes to the President, who passes the order of removal.
In April 2026 the Speaker and the Chairman declined to admit notices given against the present CEC. The law permits a fresh notice. Whether a refusal to admit a notice can be challenged in court has never been decided.
A Word on Legal Proceedings Against the CEC
Section 16 of the 2023 Act bars courts from entertaining civil or criminal proceedings against a serving or former CEC or Election Commissioner for anything done in the discharge of official duty.
Key Constitutional Provisions
| Provision | What it says |
|---|---|
| Article 324(5) | The CEC shall not be removed except in like manner and on the like grounds as a Judge of the Supreme Court; his conditions of service shall not be varied to his disadvantage after appointment. |
| Article 124(4) | Removal only by order of the President after an address by each House of Parliament, by a special majority, on the ground of proved misbehaviour or incapacity. |
| Article 124(5) | Parliament may regulate the procedure; it has done so by the Judges (Inquiry) Act, 1968 and the Judges (Inquiry) Rules, 1969. |
| 2023 Act, Section 10 | Business of the Commission to be transacted unanimously as far as possible, otherwise by majority. |
| 2023 Act, Section 11(2) | Repeats the Article 324(5) protection for the CEC. |
| 2023 Act, Section 16 | Bars civil or criminal proceedings for acts done in the discharge of official duty. |
Key Precedents Relied On
| Case | Proposition |
|---|---|
| Supreme Court Bar Association vs Union of India and Another, (1998) 04 SC CK 0099 | Article 142 supplements the Court’s power to do complete justice in a cause; it cannot be used to override an express constitutional provision. |
| Sub-Committee on Judicial Accountability vs Union of India and others, (1991) 05 SC CK 0019 | Article 124(4)–(5) with the 1968 Act is a complete code for removal; courts do not substitute themselves for either phase. |
| Mrs. Sarojini Ramaswami vs Union of India and others, (1992) 08 SC CK 0031 | Judicial review is confined to the legality of the inquiry, not to removal itself. |
| K. Veeraswami vs Union of India (UOI) and Others, (1991) 07 SC CK 0038 | Prosecution is not a substitute for removal; the office is vacated only through Article 124(4). |
| The University of Mysore and Another vs C.D. Govinda Rao and Another, (1963) 08 SC CK 0021 | Quo warranto lies only where the holder has no legal authority to hold the office; the court does not judge suitability. |
| Anoop Baranwal v. Union of India | The Court regulated the mode of appointment; it did not claim any power of removal. |
| T.N. Seshan v. Union of India, (1995) 07 SC CK 0148 | The CEC chairs a multi-member body and is not its superior; security of tenure protects the Commission’s independence, not a personal privilege. |
Frequently Asked Questions
Can the Supreme Court remove the Chief Election Commissioner?
No. Under Article 324(5) read with Article 124(4), removal lies only with Parliament and the President, on the ground of proved misbehaviour or incapacity.
Can the Supreme Court suspend the CEC while a petition is pending?
No. The Constitution contains no provision for suspension. On 5 October 2026 the Court declined a prayer for interim suspension.
Is a writ of quo warranto the same as removal?
No. Quo warranto tests only whether the appointment was lawfully made. A finding of invalidity is a declaration that the office was never lawfully held, not a removal for misconduct.
What happens if the 2023 Act is struck down?
The Court has discretion on the consequences for appointments already made and may protect them, as it did in Anoop Baranwal. Invalidation would not automatically unseat sitting Commissioners.
Who initiates removal?
Members of Parliament, by a notice of motion signed by at least 100 Lok Sabha or 50 Rajya Sabha members, followed by a judicial inquiry and a special majority in both Houses.
Conclusion
The Supreme Court is the guardian of the Constitution, but the Constitution has deliberately kept the removal of the Chief Election Commissioner out of the hands of both the Government and the courts, and placed it with Parliament, acting through a judicial inquiry and a special majority. That design protects the independence of the Election Commission. Whether any particular CEC should be removed is a question for Parliament, on proof, and not for the courts.
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