Between the increasing tension between the Congress -led Opposition and the Election Commission of India, information has come to light that the opposition is considering bringing a notice against Chief Election Commissioner Gyanesh Kumar to remove the post. This shocking step can be taken by the Leader of the Opposition Rahul Gandhi after large -scale flaws and allegations of ‘vote theft’ in the functioning of the Election Commission. After the special intensive revision of the voter list in Bihar, the conflict has increased.
What provision to remove CEC?
First of all it is important to understand that the post of Chief Election Commissioner is a major constitutional authority which has an important responsibility to ensure independent and fair elections in India. Protecting the freedom and autonomy of this post is necessary for Indian democracy, and that is why the Constitution of India has very complex provisions to remove the Chief Election Commissioner, which are like removing the judge of the Supreme Court.
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Provisions related to removing the Chief Election Commissioner are given in Article 324 (5) of the Constitution. Article 324 (5) of the Constitution states that the Chief Election Commissioner can be removed from the post in the same way and on the same basis, just as the judge of the Supreme Court is removed from the post.
This clause of the article establishes equality between the Chief Election Commissioner and the Supreme Court judge, and decides that the ‘way’ and ‘Aadhaar’ to remove the Chief Election Commissioner should be like the rules prescribed to remove the judge of the Supreme Court in the Constitution.
As a result, to understand the process of removing the Chief Election Commissioner, it is necessary to understand the constitutional and statutory structure to remove the judge of the Supreme Court.
How is SC judges removed?
The process of removing the judge of the Supreme Court, which directly applies to the Chief Election Commissioner, is recorded in Article 124 (4) of the Constitution of India and comes under the Judge (Investigation) Act, 1968.
Article 124 (4) of the Constitution states that no judge of the Supreme Court can be removed from his post unless the President has any order. This order can be passed only when both the Houses of Parliament (Lok Sabha and Rajya Sabha) pass a resolution to remove the judge in the same session. This proposal should be passed on the basis of ‘Siddha misconduct’ or ‘disability’. To pass this, both houses require ‘special majority’. This means that the majority of the total membership of the House should be as well as the majority of at least two-thirds of the members of the members who attended and vote in that House.
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This article sets the basis of the foundation and high parliamentary limit required to remove a judge. The two basis recorded in the Constitution are ‘Proved Misbehavior’ or ‘Incapacity’. Here, the Siddha word is important, because it means that investigation and confirmation before any parliamentary voting is necessary. In addition, Article 124 (4) provides for a ‘special majority’ in both Lok Sabha and Rajya Sabha. This means that not only the two-thirds majority of the members present and vote will work, but it is also necessary to have a majority of the total member number of the House.
According to this process, the process of removing the Chief Election Commissioner can be started only on the basis of perfect misconduct or disability. Any proposal to remove from the post will have to be achieved in both houses of Parliament before presenting it before the President for a final order.
How does misbehavior or disability prove to be?
The process of investigating and proving the allegations of ‘Siddha misconduct or incompetence’ on a judge is not only left on the will of the members of Parliament, but for this, the Judge (Investigation) Act, 1968 has been enacted. Since CEC is also removed like a judge, this law also controls other aspects.
The Constitution has not given any definition ‘Siddha misconduct’, but it may include intentional wrongdoing, corruption, crime related to moral decline or misuse of position. This can be not just a mistake, but a behavior filled with frequent negligence or negligence that shows a pattern. Similarly, ‘disability’ means to be physically or mentally in the condition that a person cannot do his government work properly. It is seen as a medical condition.
How to remove from post
To remove a Chief Election Commissioner on the basis of Siddha misconduct or disability, first a proposal should be made to remove the Chief Election Commissioner in any House of Parliament. On the information of the proposal, at least 100 members of the Lok Sabha or at least 50 members of Rajya Sabha should be signed.
The Lok Sabha Speaker or the Chairman of the Rajya Sabha has a discretion to accept or reject the proposal. It is important to make it clear that the decision to accept the proposal is a procedural step and it does not mean any kind of defect. If the proposal is accepted, the Speaker or Chairman will set up a three-member committee to investigate the allegations. The committee should include a judge of the Supreme Court of India, an Chief Justice of a High Court and a reputed jurist.
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This committee acts as a judicial body and formally investigate allegations of misbehavior or disability against the Chief Election Commissioner. The committee needs to determine definite allegations and give the Chief Election Commissioner a chance to present his defense. After investigation, the report is presented before the Chairman or Chairman.
Further decision based on investigation report
This process goes on only when the inquiry committee finds the Chief Election Commissioner guilty of misbehavior or any disability. If the committee acquitted the Chief Election Commissioner, then the matter is over and the proposal is rejected. If the defect is found in the report, then the removal proposal along with the report of the committee is kept in both houses of Parliament.
This proposal is debated in every House and then voting is done. As mentioned in Article 124 (4) of the Constitution, it is necessary to pass it with a special majority in both houses. This means that along with the majority of the total member number of the House, it should be passed by at least two-thirds of the members present and voting.
If this proposal passes with a special majority in both houses, it is sent to the President. In this situation, the President is obliged to issue an order to remove CEC from his post according to the Constitution.
CEC can resign on his own free will
It is important to understand that this is a formal process. CEC can leave his post on completion of tenure, after completion of retirement age, or voluntarily resign, but these methods are different from this strict and constitutional process of removing.
Section 4 of the Election Commission Act, 1991 describes the tenure of the Chief Election Commissioner (CEC). According to this, CEC’s tenure is 6 years, or till the age of 65 years, whichever is earlier. Apart from this, CEC can resign from his post by writing a letter to the President at any time.
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