Hiring and firing the CEC: Street noise can’t replace the bedrock of law and parliamentary procedure

Let’s rewind to September 26th. All three members of India’s Election Commission, Chief Election Commissioner(CEC) Gyanesh Kumar and Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi, huddled at Nirvachan Sadan and dropped a press note. The timing? Definitely not a coincidence.

Just days prior, on September 23rd, The Indian Express revealed that Sandhu and Joshi had actually put down objections on the official record at least fourteen times over the last ten months. Their gripes focused on aspects of the electoral rolls’ Special Intensive Revision (SIR) and just how the Commission was running day to day. So, the new note promised a procedural shake up. From now on, meeting agendas go out in advance. Minutes get issued right after. Want to travel abroad on official business? You need full Commission sign-off. Even new IT portals now have to clear a review committee first before they reach the bosses. For its part, the ECI stood firm on a few things, insisting the SIR decisions were completely unanimous. Those letters to the Cabinet Secretary? Strictly an HR dispute over a deputed officer, not a clash over high-level policy. Dissent, they basically said, is just a healthy part of the job.

But honestly, it’s worth stopping to look at what this whole chain of events actually means. If you just read it as a juicy political scandal, you’re missing the point. Two Election commissioners actually put their foot down in writing. The CEC didn’t ignore it, he convened the full room within days. Suddenly, there are brand new, on the record procedural commitments that simply didn’t exist before. Sure, the note didn’t magically tie up every loose end. Critics quickly pointed out that it conveniently ignored a specific online form question one Election Commissioner had flagged. And yeah, the real test is whether they actually stick to these new rules. Still, when an internal clash leads to a paper trail and concrete process updates rather than just being swept under the rug, that looks a lot more like an institution working than one falling apart.

That exact tension, watching an agency course correct in real time while still leaving us wondering who is actually pulling the strings, is what this second article is all about. The first part of this series focused on the personalities, the people who fought to build the Election Commission’s clout against massive odds. This time, we’re zooming in. What does the legal rulebook actually say right now? What has the Supreme Court tacked onto it? And, ultimately, is the Commission’s current independence baked into the office itself, or are we still just relying on the luck of the draw with whoever happens to be sitting in the chair?

What independence means

You hear the word ‘independence’ thrown around constantly when people talk about the Election Commission. But almost nobody actually stops to define it. Here’s the reality, independence isn’t just one magic switch. It’s a messy bundle of moving parts. Who gets hired and how do they get fired? Who holds the purse strings, how do internal fights get settled, and what actually sees the light of day? An institution can absolutely nail a few of these while completely lacking the rest.

So, let’s carry a quick stress test through the rest of this piece to see whether India’s Election Commission can pass. An independent Election Commission should be able to watch governments flip and stay totally unfazed. It needs the spine to look at an illegal executive order and just say ‘no’. It has to be able to rule against the ruling party without immediately signing its own death warrant. It should explain its massive decisions publicly. Courts need to be able to check its power, sure, but without accidentally throwing a live election into total gridlock. It shouldn’t have to rely entirely on borrowed government staff just to keep the lights on. It needs to let internal disagreements breathe instead of suffocating them. And it absolutely has to answer to someone, just not the government of the day.

When you measure it like that, instead of just demanding a lazy yes or no verdict, India’s Election Commission actually passes a huge chunk of the test in both law and practice. Think about it. It’s survived every single change of government since 1950. The Supreme Court repeatedly backs its authority, and courts can’t just drag it into mid-election lawsuits except in incredibly rare edge cases. Are other pieces, like building a permanent staff and routinely publishing its reasoning, still works in progress? Sure. But the big takeaway here is that the remaining job isn’t about burning the system down and starting over. It’s simply about finishing what the 2023 Act finally started.

What Article 324 says about the power of the CEC

Let’s look at the actual rulebook. Article 324(1) hands the Commission the power of ‘superintendence, direction and control’ over elections. Honestly, it’s one of the most massive grants of authority you’ll find anywhere in the Constitution. Then comes Article 324(2). It says the President appoints the Chief Election Commissioner and other commissioners, but, and this is a crucial detail, it’s explicitly “subject to the provisions of any law made in that behalf by Parliament.”

What about job security? Article 324(5) gives the Chief Election Commissioner the exact same armour as a Supreme Court judge. You can’t just fire them at will, it requires a full-blown parliamentary impeachment. The other commissioners, meanwhile, can only be removed if the Chief Election Commissioner specifically recommends it.

Now, that constitutional clause about Parliament making a law didn’t set a strict, day one deadline. It just left the door open. And for 73 years, no administration bothered to walk through it. With Parliament staying quiet, the Supreme Court had to step in and fill the void. Take the 1977 case of Mohinder Singh Gill v Chief Election Commissioner. Mobs rioted at a counting center in Firozepur and completely destroyed the ballot papers. The Election Commission didn’t hesitate, they ordered a fresh poll for the entire constituency. When someone challenged that bold move, the Supreme Court threw the challenge right out. The judges looked at Article 324 and called it a massive ‘reservoir’ of power. If the written law is completely silent during a crisis, the Commission can draw from that reservoir to save the election. But there was a catch. They have to play fair and stick to natural justice. Immense power, absolutely, but tied to an absolute duty of fairness.

That reservoir isn’t limitless, though. There is a hard ceiling. Look at A.C. Jose v Sivan Pillai in 1984. The Commission tried rolling out voting machines in fifty polling stations in Kerala purely on their own administrative say-so. The Supreme Court stepped in and said no, pointing out that the existing statute explicitly used the word ‘ballot,’ which meant paper. They cancelled the results and ordered a repoll. The logic is actually pretty simple. Filling an accidental gap in the law is one thing; outright overriding a law Parliament has already written is something else entirely. (By the way, Parliament stepped up and closed that gap themselves by legally authorizing EVMs in 1989). The Court drew a similar line in 2002 with Indian National Congress (I) v Institute of Social Welfare. The Commission wanted the sweeping power to de-register political parties. The judges shook their heads. Parliament deliberately gave the ECI the power to register parties, but intentionally left out the power to de-register them. You can see the consistent, healthy baseline here: the Commission’s authority steps in to fill honest gaps, but it always respects Parliament’s deliberate legislative choices.

How the court protected voters’ right to know

There’s a whole other half to this legal story, what you, the voter, actually have the right to know. Back in 2002, a three-judge bench in Union of India v Association for Democratic Reforms made a massive call. They rooted a voter’s right to know a candidate’s background straight into the freedom of speech under Article 19(1)(a). The government tried to argue that the petitioners should just go lobby Parliament instead. The Court wasn’t having it. Since the existing rulebook was totally silent, the judges ordered the Commission to step up and enforce transparency until a proper law was written. Overnight, candidates were suddenly forced to put their criminal records, bank balances, and educational degrees on the public record.

Parliament’s pushback? Instantaneous. By August 2002 they pushed through an ordinance, and by December they hammered out an amendment inserting a brand-new clause, Section 33B. It was incredibly blunt and the clause basically declared that, regardless of what any court ordered, a candidate didn’t have to disclose a single thing beyond what the specific written statute demanded. Naturally, the Supreme Court struck Section 33B down the very next year in People’s Union for Civil Liberties v Union of India, and told the ECI to issue revised instructions. The judges laid down a hard rule of constitutional physics here. Parliament is completely free to rewrite the underlying law if a judgment rests on it. What they absolutely cannot do is just casually pass a law commanding everyone to ignore a binding court ruling.

When you stack these rulings up with Gill and Jose, you start seeing the real pattern. The Court isn’t just playing referee, it acts as both a protector and a limiter. It pushed the Commission to step into obvious legal gaps, kept it strictly inside the lines when Parliament made clear legislative choices, and invented a brand new voter right that politicians simply hadn’t touched. It paints a much healthier, realistic picture than the usual tired talking points of ‘the judiciary saved democracy’ or ‘out of control judicial overreach.’ But there is a massive catch. None of this judge-made doctrine is permanent. What one bench builds today, a different bench can easily tear down or narrow tomorrow. And that exact fragility is why an actual, written statute passed by Parliament always matters infinitely more than just another good court ruling.

The Supreme Court’s temporary appointment rule

Here is the detail most of the coverage totally skips over. And honestly, it changes the entire shape of the debate. Back in March 2023, a unanimous five-judge Constitution Bench led by Justice K.M. Joseph stepped in. They ordered that a committee made up of the Prime Minister, the Leader of the Opposition, and the Chief Justice of India should handle ECI appointments. But here is the kicker. They explicitly wrote that this setup “will continue to hold good till a law is made by Parliament.” The bench specifically refused to issue a mandamus forcing the government to write a law, treating their own panel as a pure, interim band-aid. As the Union government later pointed out in its legal replies, the Baranwal ruling was just addressing a massive legislative void. The true constitutional problem the Court flagged wasn’t the panel makeup; it was the seventy-three-year vacuum where a law should have been.

The judges hearing the current challenges? They’re reading it the exact same way. Take Justice Dipankar Datta on September 23rd. He reasoned that if the Baranwal bench genuinely wanted the Chief Justice locked into that seat forever, they would have just said so. He called the Supreme Court’s panel a temporary arrangement under Article 142, pointing out that the 2023 Act doesn’t actually defy any binding judicial command. Even Justice Satish Chandra Sharma, who actually wanted to send the whole challenge up to a larger Constitution Bench, agreed that Baranwal was basically a temporary bridge over a constitutional void, leaving the final blueprint to lawmakers. The Solicitor General hammered this same point home during the May hearings. That interim committee was never meant to permanently strip Parliament of its Article 324 powers. So, if you read it closely, Parliament didn’t defy the Supreme Court at all in 2023. They finally stepped up and did exactly what the Court’s own ruling invited them to do, something no administration had managed in seven decades.

Now, you still have to give the challengers their due. Their lawyers argue that the new Act basically just hits the reset button, putting the real power right back in the hands of the Council of Ministers. Because of that, they claim the Supreme Court’s original warnings about executive dominance still apply, regardless of what the temporary committee was called. Justice Sharma held that this raises a massive, unsettled constitutional question. And Justice Datta noted back in May that the Court still has to sit down and figure out exactly which parts of Baranwal act as binding precedent. Those are incredibly serious, unresolved arguments. But notice what they are actually arguing about. The fight is over whether Parliament’s specific blueprint is badly designed. It’s not about whether Parliament had the right to draw up a blueprint in the first place. And on that narrow, crucial point? The Court’s own words firmly support the government.

How the 2023 Election Commission appointment law works

Parliament certainly didn’t drag its feet. By December 12, 2023, the Rajya Sabha pushed the Bill through, and the President signed off just days before the new year. And just like that, the Chief Election Commissioner and Other Election Commissioners Act, 2023 was born. It was a massive historical first.

For seventy-three years, governments of every political stripe had just coasted on executive memos to pick their umpires. Not anymore. The new rulebook is specific. Section 6 sets up a Search Committee, headed by the Law Minister, to draft a shortlist of five names, though Section 8 explicitly lets the big bosses look past that list if they need to. Who are those big bosses? That’s Section 7. The Selection Committee is the Prime Minister, the Leader of the Opposition, and a Union Cabinet minister handpicked by the PM. Essentially, the Chief Justice’s temporary seat got swapped for a second executive branch vote. The law also locks in some strict boundaries. Section 9 mandates a tight six-year term with zero chance of a do-over. Section 10 guarantees them a Supreme Court judge’s salary. And Section 18 keeps the peace: decisions should be unanimous if possible, or settled by a simple majority if it comes to that, a mechanism the Supreme Court officially green-lit way back in 1995.

Now, strip away the noise about the Baranwal ruling for a second. The government’s defense of this setup actually holds serious water all on its own. Think about it. The Prime Minister and the Cabinet have to face the voters, the Election Commission doesn’t. Giving elected leaders a formal, statutory role in picking election administrators isn’t some hostile takeover. It’s just standard democratic plumbing. Even the Supreme Court kept the PM at the table during their temporary fix, proving the debate was never really about locking the executive out entirely. Plus, there’s a glaring conflict of interest when a Chief Justice helps pick the exact officials whose decisions the Court might later have to review. And that’s not just a hypothetical worry. Fast forward to March 2026, Chief Justice Surya Kant literally had to recuse himself from hearing the legal challenge to this very Act over that exact potential conflict, handing it over to a bench with no judges in line for the top post.

Of course, critics have a sharp comeback. Two votes out of three is a guaranteed majority, no matter who is in power. They argue that the referee policing elections shouldn’t be handpicked by the exact same government it might have to penalize tomorrow. Honestly? Both sides survive the ‘swap test’ pretty well. The principle of ‘elected accountability’ makes sense whether you’re in government or the opposition. That’s a design feature, not a partisan trick. But the narrower fix the critics are actually demanding, tweaking the committee’s math rather than kicking the executive out entirely, deserves a fair hearing on its own merits, rather than being used as a weapon to trash the entire law.

So, where does the dust settle today? As of late September 2026, the courts still haven’t drawn a final line in the sand. The Supreme Court flat out refused to freeze the 2023 Act back in March 2024. They haven’t paused any hires made under it, either, including Gyanesh Kumar, who stepped up as the first CEC picked under this new law in February 2025. Then, on September 23rd, Justices Datta and Sharma bumped heads over whether the whole mess needs a larger bench. They ended up punting it to Chief Justice Surya Kant to decide on assembling a Constitution Bench. Calling the Act unconstitutional right now? That’s simply factually incorrect. But calling the debate completely over is a stretch, too. Still, from the government’s perspective, the bottom line is clear: a functioning, written law finally exists where a massive legal void sat empty for seventy three years.

How Election Commissioners can be removed

Look at Section 11. It basically just lifts the removal rules straight out of Article 324(5) and keeps them intact. Firing the Chief Election Commissioner? Good luck. They have judicial-grade armour, meaning it takes a full-blown parliamentary impeachment to get them out, exactly like a Supreme Court judge. But the other two Election Commissioners? Their jobs are tied directly to the boss. They only get ousted if the Chief Election Commissioner personally recommends it.

Critics love pointing at this and screaming about a structural flaw. But honestly, it makes a lot more sense to view it as a carefully calibrated design. Because think about the alternative. If serious misconduct goes down inside the Commission, someone actually has to be able to pull the fire alarm. You simply can’t wait on a slow, grinding parliamentary debate for every single internal dispute. The Chief Election Commissioner is the most logical, natural choice to initiate that process. If we’re talking about refining the rules, the smartest move isn’t tearing that power away entirely. It’s just putting a sensible buffer in front of it. You could easily toss the recommendation to an independent screening body first, maybe the original Selection Committee, or even a quick panel of retired judges. That way, you guarantee a solid second opinion before the axe falls. And you do it without sacrificing an ounce of institutional speed.

The ECI’s staff and funding

Appointments get all the headlines, mostly because they make for great political theatre. But that’s not where the Commission’s day to day relationship with the government actually lives. If you want to see how things really work, look at the staff. Under Article 324(6), the President and state Governors are legally obligated to hand over whatever personnel the ECI asks for. That’s exactly how 1.5 crore poll workers and security cops pulled off the massive 2024 general election. They were basically borrowed from normal government departments for the duration of the poll and returned the second the votes were counted. It’s a wildly practical setup. No permanent agency could realistically keep an electoral standing army of that size on its payroll year-round, which is why the actual ECI headquarters in Delhi runs on a remarkably lean crew.

But there is a flip side. September gave us a quick glimpse of it: by the Commission’s own admission, those letters the two Election Commissioners fired off to the Cabinet Secretary were actually just a squabble over a deputed officer. It’s a sharp reminder. The people keeping the Commission’s lights on are still, in part, funnelled straight through the executive branch’s machinery.

The money follows a pretty similar logic. If you dig into the Union Budget (Demand No. 66 under the Ministry of Law and Justice), the Commission actually spent ₹289.01 crore in 2023-24. Their 2025-26 budget got revised to ₹373.29 crore, and they are pencilled in for ₹382.22 crore for 2026-27. But here is the crucial detail: every single rupee of that is listed as ‘voted expenditure.’ Unlike the Supreme Court or the national auditor, whose salaries are constitutionally locked into the Consolidated Fund and completely bypass the annual political budget fight, the ECI has to wait for Parliament to vote on its allowance every year. To be clear, that specific pot of money just covers the Delhi office, voter awareness campaigns, and training campuses. 

The massive bill for running the actual elections sits in a totally different bucket (Demand No. 65). So, this isn’t a story about the ECI being starved for cash. It’s about structural design. The Commission wields absolute, unquestioned command while an election is happening, but its core funding still trickles through the standard, messy annual budget process. Asking whether the ECI’s baseline budget deserves that ironclad, judicial-style constitutional armour? That’s a completely reasonable debate for the future, not proof that the system is currently broken.

What happened in September

Let’s take this new promise to circulate agendas and publish minutes at face value. Honestly, it’s a genuine step forward. Instead of defaulting to pure cynicism about the timing, look at what actually happened. An internal disagreement boiled over, and within just a few days? The institution responded by upgrading its procedural rulebook instead of hiding behind a wall of silence.

Now, sure, critics will immediately point to 2025. Back then, transparency researchers filed a bunch of RTIs trying to get their hands on records of the Commission’s meetings with political parties, or the raw files behind the electoral roll revisions. Most of those requests hit a brick wall. They were turned down, endlessly redirected, or met with the classic information not held excuse. On May 20th of that year, the Commission flat-out told one applicant they simply didn’t have the data he was looking for. But here’s the thing. That rocky track record and today’s new commitments aren’t contradicting each other as it’s a sequence. When an institution takes heat for a glaring gap between what people expect and what it actually does, and then tightens up its act in response? That is exactly how a healthy, functioning system is supposed to behave.

The real test, of course, hasn’t happened yet. We just haven’t had the time. The true measure of this reform isn’t whether they publish the minutes today while everyone is watching. It’s whether this new habit holds up during a sleepy, quiet month when the alarm bells aren’t ringing.

Opposition, protests and limits of political pressure

Back in April 2026, opposition MPs tried to push through official removal notices against CEC Gyanesh Kumar, pointing fingers at alleged bias and electoral roll handling. The Lok Sabha Speaker and Rajya Sabha Chairman didn’t admit the notices. Predictably, the opposition took their grievances straight to the streets. Let’s be real, their concerns about election integrity deserve scrutiny. Legitimate questions shouldn’t be brushed under the rug just because they sting politically. But shouting an allegation from the rooftops doesn’t magically turn it into the concrete ‘proved misbehaviour’ the law demands.

Having a motion turned down doesn’t mean you just throw your hands in the air and throw out the whole rulebook. If the opposition genuinely feels like their argument got shortchanged, the real solution is to go back to the drawing board, build a bulletproof, evidence-driven legal argument and deploy every single parliamentary and judicial path on the books.

Now, look at the recent street protests pushed by the Cockroach Janta Party (CJP) and figures like AISA national president Neha Bora right out in front. They’ve dragged this fight against Gyanesh Kumar out of committee rooms and straight onto the pavement. Sure, that kind of grassroots noise keeps the headline machine running and ensures the public doesn’t forget about the controversy. But street rallies can’t actually solve a deep constitutional puzzle on their own.

Parliament isn’t just some annoying procedural hurdle you bypass the moment your first attempt gets shut down. It is the actual, legitimate arena where heavy charges against a constitutional figure have to be weighed against hard evidence and real law. Sure, street marches grab headlines and peaceful protest is a core democratic right, no question. But let’s not blur the lines. A protest can broadcast frustration, it can’t establish legal guilt. Slogans amplify a narrative, but they don’t substitute for real investigative rigor. If you’re demanding the scalp of a constitutional authority, your credibility lives or dies by the weight of your evidence, not the volume of your megaphones.

Conclusion: A stronger legal framework

The first article in this series was essentially a rescue story. We talked about a Chief Election Commissioner who breathed life into dormant powers, a Supreme Court that plugged the holes lawmakers left behind, and an agency that grew way too consequential for any government to successfully boss around. That history? Genuinely admirable. But the legal reality we’ve walked through today doesn’t complicate that legacy. It completes it.

Think about the sheer scale of this shift. For the absolute first time since 1950, the massive question of who gets to pick India’s electoral umpire is dictated by an actual law. Debated and passed by an actual Parliament. That completely wipes out seventy-three years of totally unstructured, behind closed doors executive discretion, a highly convenient loophole that literally every single ruling party before this happily inherited and exploited. The 2023 Act isn’t some democratic crisis. It is a bedrock and the very first real foundation this issue has ever actually had. Sure, there is always going to be work ahead. But moving forward, any tweaks are just standard legislative maintenance. And for the first time in Indian history, we finally have a structure that is built solidly enough to be maintained at all.