Opposition calls for CEC’s exit over ‘illegal conduct’

Why in News?

An investigative report has claimed that Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi recorded formal objections at least 14 times in ten months to decisions allegedly issued in the name of the Election Commission of India (ECI) without their knowledge or approval.

Opposition parties have demanded the removal of Chief Election Commissioner (CEC) Gyanesh Kumar and a Supreme Court-monitored investigation. 

The ECI maintains that internal notes and technical suggestions are part of normal deliberation and that its final decisions, including SIR-related decisions, were taken unanimously.

Current Controversy:

The Election Commissioners (ECs) had formally recorded objections at least 14 times over the last 10 months. The major decisions were being made in the name of the Election Commission of India (ECI) without their knowledge. The objections reportedly concerned:

• Changes to Form 6 for enrolling new voters
• Centralisation and custody of the electoral-roll database
• Restriction of access available to statutory electoral authorities
• Deletion and restoration of voters during the Special Intensive Revision (SIR)
• Appeals filed against orders restoring voters to electoral rolls; and
• Administrative changes affecting oversight of the ECI’s information-technology systems. 

Election Commission of India: 

The Election Commission of India is a permanent, independent body established by the Indian Constitution to ensure free and fair elections in the country. 

• Article 324 (1): Vests the superintendence, direction and control of elections to Parliament and State Legislatures in the Election Commission of India.
• Art. 324(2): Appointments of CEC and ECs shall be made by the President, subject to any law made by Parliament. 
• The Election Commission operated as a single-member body consisting only of the Chief Election Commissioner (CEC) till 1989. Presently, the ECI is a three-member body comprising 1 CEC and 2 ECs. 

How must the Election Commission take decisions?

Although the CEC acts as the Chairperson, the office is not intended to exercise unilateral control over the Commission. The procedure is governed by the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

• The business of the ECI must be transacted in accordance with the provisions of the 2023 Act.
• The procedure for transacting and allocating the ECI’s business may be regulated only through a unanimous decision.
• However, if there is any difference of opinion, such a matter shall be decided according to the opinion of the majority.

Thus, if the two ECs formally opposed a final proposal, the CEC’s individual view would constitute a minority of one and could not become the Commission’s decision.

If an order was issued in the name of the full ECI without placing it before the other two Commissioners, it could be challenged as violating the provision under the Chief Election Commissioner and Other Election Commissioners Act, 2023.

However, no court or statutory inquiry has yet established that the CEC committed “illegal conduct”.

Major Issues Reportedly Flagged: 

1. Centralisation of the Electoral-Roll Database & Restriction of Access available to Statutory Electoral Authorities:

• The Concern: The transition of voter data management from localised platforms (ERONet) to a highly centralised framework (ECINet) shifted data custody directly under the control of the ECI’s central IT division.
• Why does it matter?
  • Software permissions within the centralised system restrict the operational and data-modification access of state-level election officials and Electoral Registration Officers (EROs). It strips their legal statutory autonomy under the Representation of the People Act, 1950.
    • Under the Representation of the People Act, 1950, the ERO is the sole legal authority empowered to prepare and revise rolls. 
  • Centralisation exposes the entire national repository to a single point of failure. It heightens the risk of mass unauthorised alterations, systemic data breaches, and large-scale algorithmic errors operating without local oversight.

2. Changes to Form 6 for Enrolling New Voters: 

• The Concern: The digital version of Form 6 introduced a mandatory field requiring applicants to declare whether their parents or grandparents were registered during the previous Special Intensive Revision (SIR).
• Why does it matter? This administrative change effectively created a new substantive eligibility criterion without amending the Registration of Electors Rules, 1960. As it has no basis in statutory law, it creates an illegal entry barrier that disproportionately disenfranchises young first-time voters, migrants, and marginalised groups who may lack ancestral documentation.

3. Deletion and Restoration of Voters during the SIR:

• The Concern: Massive alterations (affecting over 13 crore voter entries across 30 states) were executed via automated data-matching algorithms and top-down directives without the full Commission’s review.
• Why does it matter? Relying on automated software to delete or restore voters without rigorous local, human verification risks causing wrongful mass disenfranchisement. This directly violates Supreme Court mandates on voter roll integrity.

4. Appeals filed against Orders Restoring Voters:

• The Concern: Over 38 lakh appeals were generated within the system (including 16.10 lakh in West Bengal alone) to challenge decisions made by designated judicial officers who had already ordered wrongfully deleted voters to be restored.
• Why does it matter? The identity of who authorised or filed these mass appeals remained completely opaque. Allowing anonymous or automated mass appeals weaponises the legal process, trapping legitimate citizens in a loop of bureaucratic hurdles and delaying their constitutional right to vote.

5. Administrative Changes affecting IT Oversight: 

• The Concern: Internal administrative restructuring stripped the full Commission (the CEC and the two ECs acting collectively) of direct oversight regarding how the ECI’s technical and information-technology systems operate.
• Why does it matter? By moving IT systems away from collective institutional control, it allowed the technical wing to deploy far-reaching database policies unilaterally. It violates the principle that decisions must be made by a three-member majority, insulating critical software infrastructure from constitutional checks and balances.

ECI’s Defence: 

The Commission has advanced four broad arguments:

• Written observations and technical queries are normal features of decision-making in a multi-member institution.
• Internal notes may reflect preliminary concerns, not final dissent.
• Final decisions, including the SIR, were approved unanimously.
• ECINet and other platforms employ cybersecurity controls intended to prevent unauthorised tampering. 

Can the Chief Election Commissioner be Removed?

• Under Article 324(5), the CEC can be removed only in the same manner and on the same grounds as a judge of the Supreme Court. Other Election Commissioners, however, can be removed by the President only on the recommendation of the CEC. 
• The grounds are proved misbehaviour or incapacity.
• Removal requires an address by each House of Parliament supported by:
  • A majority of the total membership of that House; and
  • At least two-thirds of the members present in the House and voting.

Thereafter, the President issues the removal order.

Can the Opposition directly remove the CEC?

• No. A political demand, press conference or ordinary parliamentary resolution cannot remove the CEC. The constitutionally prescribed special-majority process must be completed.

Can the Supreme Court remove the CEC?

The Supreme Court cannot substitute itself for Parliament and remove the CEC through the procedure under Article 324(5). However, it may:

• Judicially review the legality of ECI decisions
• Require production of official records
• Quash decisions taken contrary to statute
• Protect voters against arbitrary exclusion
• Direct institutional or technical audits where legally justified; and
• Examine constitutional challenges through Articles 32 and 142.

Protection under Section 16 of the 2023 Act

• Section 16 protects present and former Commissioners from civil or criminal proceedings for acts, things or words done while acting or purporting to act in the discharge of official functions.
• However, such personal protection does not mean complete immunity of ECI decisions from constitutional judicial review.

What are the Wider Constitutional Concerns?

• Free and fair elections are part of the basic structure of the Constitution. Electoral-roll integrity is foundational because a citizen excluded from the roll is effectively denied political participation.
• Institutional independence versus internal accountability: Constitutional independence should strengthen collective institutional functioning rather than concentration of decision-making by unilateral executive command. The ECI must remain independent of executive pressure, partisan influence, internal unilateralism, and unaccountable technological systems.
• Digital constitutionalism in electoral governance: As electoral administration becomes increasingly digital, constitutional principles must extend to the design and operation of electoral technology. Digital architecture should reinforce, rather than displace, the legal architecture of electoral administration. This requires:
  • Role-based access controls that correspond to statutory responsibilities
  • Tamper-resistant audit trails recording who altered electoral data, when, and under whose authority
  • Human verification before consequential automated decisions
  • Independent technical audits of databases and algorithms
  • Clear accountability for errors arising from data matching, software changes or unauthorised access.
• Public trust and institutional legitimacy: The ECI’s effectiveness depends not only on the legal validity of its decisions but also on public confidence in the fairness and transparency of the electoral process. Opaque changes to electoral procedures, unexplained alterations to digital systems or uncertainty regarding institutional authorisation can create doubts about the decision-making process even where the underlying objective is legitimate.
• Confidentiality versus transparency: Internal deliberations may legitimately require confidentiality to allow Commissioners and officials to examine competing legal and administrative options freely. However, confidentiality should be distinguished from institutional opacity. This requires greater transparency regarding final decisions, their statutory basis, the authority that approved them, material changes to electoral procedures, and formally recorded disagreements, while protecting genuinely confidential deliberative or security-sensitive material.

Thus, the controversy goes beyond an internal disagreement within the ECI. It highlights a larger transition in electoral governance from paper-based administration to technology-intensive electoral management.

The central question is how India can ensure that technology enhances the accuracy and efficiency of electoral administration without weakening statutory authority, due process, transparency and institutional accountability. 

A robust electoral system, thus, requires three elements to operate together: Constitutional independence + statutory accountability + technological transparency. 

UPSC Mains PYQs:  

Q. Discuss the role of the Election Commission of India in the light of the evolution of the Model Code of Conduct. (2022) 

Q. In the light of recent controversy regarding the use of Electronic Voting Machines (EVM), what are the challenges before the Election Commission of India to ensure the trustworthiness of elections in India? (2018) 

Q. “To enhance the quality of democracy in India, the Election Commission of India has proposed electoral reforms in 2016. What are the suggested reforms and how far are they significant to make democracy successful? (2017) 

Mains Practice Question:

Q. “The independence of the Election Commission requires not merely protection from executive interference, but also transparency and collegiality in its internal functioning.” Discuss in light of the statutory procedure governing decisions of the Commission.

UPSC PYQ 2017:

Q. Consider the following statements:

1. The Election Commission of India is a five-member body.

2. The Union Ministry of Home Affairs decides the election schedule for the conduct of both general elections and by-elections.

3. The Election Commission resolves the disputes relating to splits/mergers of recognised political parties.

Which of the statements given above is/are correct?

(a) 1 and 2 only

(b) 2 only

(c) 2 and 3 only

(d) 3 only

Answer: (d) 

Practice Prelims MCQ:

Q. With reference to the Election Commission of India, consider the following statements:

1. All decisions of the Election Commission must necessarily be unanimous.
2. In case of disagreement, the matter is decided according to the majority opinion.
3. The Chief Election Commissioner can be removed in the same manner and on the same grounds as a judge of the Supreme Court.
4. Other Election Commissioners can be removed by the President only on the recommendation of the Chief Election Commissioner.

Which of the statements given above are correct?

(a) 1 and 2 only
(b) 2, 3 and 4 only
(c) 1, 3 and 4 only
(d) 1, 2, 3 and 4

Answer: (b)

Explanation: The Commission should transact business unanimously as far as possible, but unanimity is not compulsory in every matter. Where opinions differ, the majority view prevails. Statements 3 and 4 follow Article 324(5).

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