Free and Fair Elections & CEC Removal: Constitutional Safeguards Explained

Concerns over alleged vote theft and electoral roll manipulation during the Special Intensive Revision (SIR) have reignited debate over the integrity of free and fair elections in India.

Constitutional Status and Landmark Legal Foundations

• Basic Structure Doctrine: In Indira Gandhi v. Raj Narain (1975), the Supreme Court held that free and fair elections form part of the Constitution’s Basic Structure and therefore cannot be amended or diluted by Parliament.
• Article 324: Establishes a permanent Election Commission vested with the powers of superintendence, direction, and control over elections to the President, Vice President, Parliament, and State Legislatures, ensuring institutional independence as envisioned by the framers of the Constitution.

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Current Challenges and Controversies

• Voter List Manipulation: The Special Intensive Revision (SIR) process has triggered concerns over electoral roll integrity, with allegations that nearly 6.5 million voters, particularly from minority or opposition-supporting communities, were removed.
• Appointment Process Tussle: In Anoop Baranwal v. Union of India (2023), the Supreme Court mandated a selection committee comprising the Prime Minister, the Chief Justice of India (CJI), and the Leader of the Opposition to safeguard neutrality in appointing Election Commissioners.
• Legislative Override and Legal Challenge: A 2023 Act replaced the CJI with a Union Minister nominated by the government, leading to criticism that it creates a 2–1 majority in favour of the executive. 
  • This amendment is currently under challenge in Jaya Thakur v. Union of India before the Supreme Court.

Safeguards for the Chief Election Commissioner (CEC)

• Removal Process: Under Article 324(5), the CEC can only be removed in the same manner and on the same grounds as a Supreme Court judge.
• Grounds for Removal: Removal can occur only for proven misbehaviour or incapacity.
• Service Conditions: The conditions of service for the CEC cannot be varied to their disadvantage after their appointment.
• Doctrine of Natural Justice: Any removal process must adhere to due process, ensuring the right to be heard and a fair inquiry before Parliament votes on the motion.

The Impeachment-Like Process for Removal of the CEC

• Initiation of Motion: A removal notice must be signed by at least 100 members of the Lok Sabha or 50 members of the Rajya Sabha, reflecting a high threshold.
• Investigation Stage: Upon admission by the Speaker/Chairman, a three-member inquiry committee, comprising a Supreme Court judge, a High Court Chief Justice, and a distinguished jurist, examines the charges.
• Final Parliamentary Approval: The motion must be passed by both Houses of Parliament through a special majority— a majority of the total membership and a two-thirds majority of members present and voting.

Removal of Other Election Commissioners

• Presidential Authority: Other Election Commissioners are removed by the President, but only upon the advice of the CEC.
• Limitations on CEC Advice: According to Vineet Narain vs. Union of India,1997, the CEC cannot provide this advice suo motu. 
  • They can only offer an opinion if the President specifically asks for it regarding the removal of a commissioner.
• Nature of Protection: Unlike the CEC, ECs do not enjoy impeachment-level protection; however, the requirement of the CEC’s recommendation acts as a safeguard against arbitrary executive removal.

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Conclusion

Safeguarding the Election Commission’s autonomy through a stringent removal process grounded in the Doctrine of Natural Justice is essential to upholding free and fair elections as part of the Constitution’s Basic Structure.

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