Election commissioner tenure security in India rests on a single constitutional clause with an uneven floor. Article 324(5) of the Constitution protects the Chief Election Commissioner with the strongest removal shield the document gives any election official, removal only in like manner and on like grounds as a judge of the Supreme Court, and then, in a second proviso, places every other Election Commissioner behind a weaker and entirely different door: such a commissioner “shall not be removed from office except on the recommendation of the Chief Election Commissioner.” One officeholder can be displaced only by a special majority of Parliament after a formal inquiry. The others can be displaced by the President acting on one colleague’s written recommendation, with no parliamentary vote, no inquiry and no stated ground specified anywhere in the text. This article defends one namable claim about that arrangement. The Election Commission’s tenure-security architecture is defined by an architectural asymmetry between the Chief Election Commissioner and the other commissioners, an asymmetry with three components, removal procedure, tenure protection and the institutional politics the first two generate, and the dramatic post-2023 trajectory of the institution, the Constitution Bench judgment in Anoop Baranwal v Union of India of 2 March 2023 and the appointment Act of December 2023, operated through that asymmetry without ever amending it. The debates of 2023 were fought over who chooses the commissioners. The question of how unequally the commissioners are protected once chosen is older, quieter and still unanswered, and it is the question that explains the most about how the institution actually behaves.

The Text of Article 324(5): Two Provisos and Two Doors Out

The full tenure clause deserves to be read slowly, because the whole argument of this article is contained in its grammar. Article 324(5) provides: “Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine: Provided 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 and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment: Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.”

Three features of the drafting carry the analytical weight. First, the main clause hands “conditions of service and tenure of office” to presidential rule-making, subject to any parliamentary law, so the ordinary terms of the commissioners’ service were left deliberately flexible, to rules of 1950 vintage and later to statute. Second, against that flexibility the first proviso entrenches two protections for the Chief Election Commissioner alone, and entrenches them in the constitutional text where neither a rule nor, on the better view, an ordinary statute can dilute them: protection against removal except by the judicial-removal route, and protection against disadvantageous variation of service conditions after appointment. Third, the second proviso builds the removal route for every other Election Commissioner and for Regional Commissioners, and it builds that route through the Chief Election Commissioner personally. The other commissioners’ security is therefore derivative. It does not run from the Constitution directly to the officeholder. It runs through the office of the Chief Election Commissioner, and its strength depends on the conduct of whoever holds that office and on whether the President, advised by the Council of Ministers, chooses to act on a recommendation when one is made.

The Constituent Assembly chose this shape with its eyes open, within the founding-period long-arc context that this series has traced from the first pillar. The Assembly debated the election provisions, draft Article 289, which became Article 324, on 14 and 15 June 1949. Dr B. R. Ambedkar, piloting the draft, told the Assembly that the election machinery had to be outside the control of the executive government of the day, because the franchise and the conduct of elections were the foundation on which every other democratic right rested. Members pressed him from two directions. Professor Shibban Lal Saksena wanted the Chief Election Commissioner’s appointment itself subjected to confirmation by a two-thirds majority of Parliament, on the American pattern for high appointments. Others worried that an Election Commission appointed by the President, which meant in practice by the Prime Minister, would drift toward the executive it was meant to police. Ambedkar’s answer conceded the appointment point and fortified the tenure point. The Assembly, he argued, could not conveniently sit in judgment on appointments, but it could and did lock the removal door: the Chief Election Commissioner was placed, for removal purposes, exactly where a judge of the Federal Court, soon the Supreme Court, stood. The asymmetry between the Chief Election Commissioner and the other commissioners attracted far less debate, largely because the Assembly imagined a Commission that would ordinarily consist of one man, with additional commissioners appointed for the heavy seasons of delimitation and general elections and Regional Commissioners assisting in the provinces. A design drawn for a single permanent officeholder and temporary assistants distributed its protections accordingly. That founding assumption, that the Commission would be one person with occasional help, is the first fact any reading of Article 324(5) must hold in view, because the permanent three-member Commission of later decades inherited a tenure design drawn for a different institutional animal.

The founding generation also placed the election provisions beside the constitutional rights framework for a reason Ambedkar stated plainly in June 1949: a right to vote administered by a partisan machinery would be a right in name only. Free elections were, in the Assembly’s design, the load-bearing wall of the rights structure, and tenure security was the steel inside that wall. What the Assembly did not foresee was that the wall’s steel would be thicker on one side than the other, and that the thinner side would one day carry two of the Commission’s three members, including members who had dissented from their Chief in public.

How many votes does an address to remove the Chief Election Commissioner need in each House?

An address removing the Chief Election Commissioner must be supported in each House by a majority of the total membership of that House and by not less than two-thirds of the members present and voting, the double majority Article 124(4) prescribes for a Supreme Court judge, on proved misbehaviour or incapacity alone.

The mechanics deserve spelling out because they are the substance of the first component. A removal motion against a Supreme Court judge begins with a notice signed by at least one hundred members of the Lok Sabha or fifty members of the Rajya Sabha. The presiding officer may admit or refuse the motion. If admitted, a three-member committee, a Supreme Court judge, a Chief Justice of a High Court and a distinguished jurist, investigates the charges. Only if the committee finds the judge guilty of misbehaviour or incapacity does the House take up the address, and the address must then clear the double majority in the same session. Applied to the Chief Election Commissioner by the words “in like manner and on the like grounds,” the procedure means that no government, however large its Lok Sabha majority, can remove a Chief Election Commissioner quickly, quietly or on a whipped simple vote. The Rajya Sabha’s composition, rarely controlled by the ruling party of the day, makes the double majority in both Houses a genuinely bipartisan threshold. In more than seven decades no Chief Election Commissioner has been removed, and no removal motion against one has ever been carried through the inquiry stage. The shield has never been struck, which is one reason its exact strength remains a matter of text and inference rather than of precedent.

For most of the Commission’s first four decades, the asymmetry in the text had no occasion to operate, because the Commission was a single-member body. Sukumar Sen, who took office as the first Chief Election Commissioner on 21 March 1950 and built the machinery that conducted the first general election of 1951 and 1952, had no fellow commissioners whose removal could be recommended. His successors through the 1950s, 1960s, 1970s and 1980s likewise served alone, the second proviso dormant beside them. The founding-template architecture of a single, tenured, judge-like election chief was the lived constitution of the institution for forty years. The proviso stirred only when the Commission acquired colleagues: briefly in October 1989, and permanently from October 1993. Each stirring exposed a different face of the asymmetry, and the sections below take the components in order before turning to the episodes.

The Main Clause at Work: Rules, Statutes and the Slow Catch-Up of 1991

Between the two provisos sits the main clause, and its quiet history explains how the commissioners’ everyday tenure terms were set for four decades. “Subject to the provisions of any law made by Parliament,” the clause leaves conditions of service and tenure to presidential rule. Parliament made no such law until 1991, so from 1950 onward the terms on which Sen and his successors served, the length of the term, the salary, the pension, the leave, were matters of executive rule-making, alterable by the very governments the Commission existed to referee. The Election Commission (Conditions of Service of Election Commissioners) Rules, consolidated in 1972 from earlier instruments, prescribed a term and salary by notification. The arrangement was not abused in any dramatic recorded instance; salaries were raised, not cut, and no Chief’s term was shortened by rule. But the architectural point stands independent of abuse. For forty-one years the tenure of the election chief rested, below the removal shield, on instruments the executive could rewrite at will, and the first proviso’s anti-variation freeze protected each incumbent only against changes after his own appointment, leaving the office itself, for the next holder, at the mercy of the rule-book. The founding generation had assumed a Parliament eager to legislate the details; the Parliament of the republic found the subject easy to postpone, because the rules worked, the incumbents were respected, and no crisis forced the clause awake.

The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act 1991, enacted in January 1991, was the catch-up. It fixed the term of the Chief Election Commissioner and the Election Commissioners at six years from assumption of office or until the age of sixty-five, whichever is earlier, and it equated their salary with that of a judge of the Supreme Court, converting administrative conventions into statutory entitlements. The timing deserves notice. The Act passed weeks after T. N. Seshan took office in December 1990, at the start of the assertive phase that would redefine the institution, and two years before the multi-member reconfiguration made its transaction-of-business provisions significant. Parliament legislated the service terms of a single-member Commission and found, within three years, that it had to amend the statute to govern a three-member one, which it did through the Amendment Act of 1993, writing the unanimity-and-majority rule for the Commission’s decisions into law. The sequence, rules for forty years, a statute for the single-member body, an amendment for the collegial body, is the statutory shadow of the constitutional story this article tells: every generation legislated for the Commission it could see, while the tenure text of 1949, drawn for the Commission of 1949, governed all of them impartially and anachronistically.

One more feature of the main clause completes the groundwork for the components that follow. The clause speaks of “the Election Commissioners and the Regional Commissioners” in a single breath, and the provisos then sort those officeholders into the protected and the derivative. The text never uses the phrase “Election Commission” as a collective rights-holder for tenure purposes; tenure rights attach to offices one by one, and they attach unequally. That drafting choice, natural in 1949 when the offices were expected to be filled unevenly and temporarily, is the seed from which the whole asymmetry grows, and it is why the remedy the Law Commission proposed in 2015 had to be a constitutional amendment rather than a statute: a law made under the main clause can set conditions for all commissioners alike, but it cannot rewrite the removal provisos that sort them.

Component One: The Removal-Procedure Asymmetry

The first component is the one every civics textbook records, and it is still underweighted in most analysis. Between the Chief Election Commissioner and an Election Commissioner there is not a difference of degree in removal protection but a difference of kind, of forum, of procedure and of politics. The Chief Election Commissioner’s removal is a parliamentary act of the gravest constitutional class, grouped by the text itself with the removal of the judges of the Supreme Court. An Election Commissioner’s removal is an executive act, performed by the President by order, conditioned on a single internal input, the recommendation of the Chief Election Commissioner. No notice of motion, no committee of inquiry, no debate, no vote, no requirement that any ground be proved, or indeed that any ground be stated, appears anywhere in the second proviso. The text does not say an Election Commissioner may be removed for misbehaviour, or for incapacity, or for partisanship, or for any cause at all. It says only who must recommend. The safeguard is personal, not procedural: the commissioner’s tenure is secure exactly as long as the Chief Election Commissioner declines to recommend removal, and not one day longer against a Chief who does recommend and a President willing to act.

This structure was argued over at the founding in terms the Assembly understood. The judicial analogy for the Chief was chosen because the Assembly wanted the election chief to be as hard to move as the judges whose independence it had debated through the winter of 1948 and 1949. The weaker provision for the others reflected their expected status as auxiliaries. What no speaker in June 1949 appears to have weighed is the inversion the proviso creates inside a collegial body: the member with the least removal protection is protected by the continuing goodwill of the member with the most. Every Election Commissioner serves, in the last analysis, under a suspended recommendation. The Law Commission of India, in its 255th Report on Electoral Reforms of March 2015, chaired by Justice A. P. Shah, named the consequence directly: equal constitutional protection should be given to all members of the Commission in matters of removability, and Article 324(5) should be amended to equate the removal procedure of the Election Commissioners with that of the Chief Election Commissioner. That recommendation, made after a quarter century of multi-member experience, is the clearest official acknowledgment that the asymmetry is not a drafting residue but a working feature with working effects.

Two subtleties of the removal asymmetry matter for everything that follows. The first is that the second proviso cuts in two directions at once. It is a shield against the executive, because the President cannot remove an Election Commissioner on ministerial advice alone; a recommendation from within the Commission must exist. A government angered by a commissioner’s dissent cannot reach that commissioner directly. The same clause is simultaneously a sword inside the Commission, because the only hand that can set a removal in motion is the Chief’s. Whether the clause operates as shield or as sword depends entirely on the alignment between the Chief Election Commissioner and the government of the day. If the Chief and the government are aligned against a commissioner, the proviso offers that commissioner no forum in which to answer. If the Chief and the government are opposed, the proviso offers the government no route at all, and offers the Chief a recommendation the government may simply decline to accept, which is what happened in 2009. The second subtlety is the silence about grounds. Because the text specifies no ground, the recommendation power has been read both ways by serious lawyers: as an unconfined judgment the Chief forms on a colleague’s fitness, and as a quasi-judicial determination that must rest on material, follow a complaint or a reference, and survive judicial review for fairness. The Supreme Court’s 2007 proceedings in the petitions arising out of the opposition’s complaint against Election Commissioner Navin Chawla left those questions expressly open, recording the government’s submission and the Chief’s claim of a suo motu power without deciding between them. An undefended clause of twenty-one words thus carries the tenure of two-thirds of the Commission’s membership, and its meaning has been supplied, episode by episode, by practice rather than by adjudication.

Component Two: The Tenure-Protection Asymmetry in Service Conditions

The second component is quieter and almost never discussed, yet it completes the architecture. The first proviso protects not only the Chief Election Commissioner’s office but the value of holding it: “the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment.” Salary, allowances, pension arrangements and the other incidents of service are frozen at their most favourable level for the incumbent Chief from the day of appointment. A government displeased with a Chief Election Commissioner cannot squeeze the office, cannot trim its salary prospectively for the incumbent, cannot retaliate through the conditions of the post. The guarantee is an anti-retaliation device, and it belongs to the Chief alone. No parallel words protect an Election Commissioner. For the other commissioners, conditions of service rest where the main clause of Article 324(5) puts them, in presidential rules subject to parliamentary law, variable by the ordinary processes of rule-making and legislation, including, in principle, to an incumbent’s disadvantage. The removal asymmetry says the Chief cannot be pushed out except by Parliament. The conditions asymmetry says the Chief cannot be leaned on through the terms of the job while in it. The other commissioners enjoy neither assurance from the constitutional text itself.

Statute has papered over part of this gap, and the distinction between the papering and the wall is exactly the kind of detail the architectural reading exists to catch. The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act 1991 gave the Chief Election Commissioner and the Election Commissioners equal salary, equivalent to that of a judge of the Supreme Court, and a term of six years or until the age of sixty-five, whichever came earlier. The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act 2023, which replaced the 1991 Act, again wrote salary equality into law, after official amendments during its passage restored the equivalence with a Supreme Court judge’s salary that the Bill as introduced had replaced with equivalence to the Cabinet Secretary. But a statutory equality can be amended by a simple parliamentary majority on an ordinary day, while the Chief’s constitutional freeze cannot be touched without amending the Constitution itself. The Election Commissioners hold their equal pay at the pleasure of the legislative majority of the moment; the Chief holds his conditions against any majority short of a constitutional amendment. Component two is therefore best stated precisely: in the constitutional text, the anti-variation guarantee runs to one office only, and every equalisation the other commissioners have received has arrived by revocable statute.

There is a third, easily missed holder of the weaker tenure: the Regional Commissioners, named in the same second proviso. Regional Commissioners, appointed to assist the Commission for particular elections or regions, share the Election Commissioners’ derivative protection, removable only on the Chief’s recommendation. Their inclusion confirms the drafting logic. The proviso gathers everyone in the election machinery except the Chief into a single class of officeholders whose tenure the Chief underwrites. The architecture is a pyramid with one constitutionally armoured apex and a base whose armour is borrowed. For four decades the pyramid had only an apex, and the design looked like simple judicial-style independence. Once the base acquired permanent occupants with equal votes, the pyramid’s internal strains became the institution’s recurring story.

Peer Institutions: No Other Collegial Body Splits Its Own Armour

The asymmetry looks stranger the wider the constitutional field is surveyed, because the Constituent Assembly and the Parliaments that followed it distributed removal protection by two consistent logics everywhere else, and Article 324(5) follows neither. The first logic protects the single guardian office at the judicial level: the Comptroller and Auditor General, under Article 148, is removable only in like manner and on like grounds as a judge of the Supreme Court, and the judges’ own protection under Article 124(4) is the template both clauses copy. The second logic protects every member of a collegial body at the same, somewhat lower level: the Chairman and members of the Union Public Service Commission, under Article 317, can be removed by the President for misbehaviour only after the Supreme Court, on a reference, has inquired and reported the charge proved, with a small set of additional grounds, insolvency, outside paid employment, infirmity, that the President may act on directly. Whatever one thinks of the UPSC’s level of protection, it is uniform inside the body. No member of the Public Service Commission holds a weaker shield than its Chairman. The Election Commission is the only major constitutional body whose members carry different grades of removal protection among themselves, one at the judicial level and the rest at the level of a colleague’s recommendation. The anomaly is not that the Election Commissioners are weakly protected in absolute terms; a removal that requires the Chief’s recommendation is a real barrier to direct executive action. The anomaly is the internal gradient, the slope built into a body that must deliberate as equals.

The gradient becomes sharper still when the Commission is compared with the institution it is most often paired with in reform literature, the higher judiciary itself. A Supreme Court judge’s colleagues cannot initiate his removal; the process belongs to Parliament and to the inquiry committee, and the Chief Justice of India holds no recommendation power over the tenure of the puisne judges who sit with him and who may outvote his administrative preferences. The framers of Article 324(5) borrowed the judge’s shield for the Chief Election Commissioner and then, in the same breath, gave the Chief a power over his colleagues that the Chief Justice has never held over his. Defenders of the design, in the scholarly literature and in the government’s stated positions across the decades, have offered one functional justification: the recommendation requirement disciplines the Commission’s members against misconduct and partisanship by giving the institution’s head an internal remedy, sparing Parliament and the courts the burden of policing election commissioners. The justification deserves its strongest form. A body that conducts elections cannot wait for a parliamentary inquiry each time a member’s conduct damages its credibility in the middle of a poll; an internal, swift remedy has genuine value, and the Constituent Assembly’s expectation that the other commissioners would be temporary assistants made the Chief’s supervisory removal power look like ordinary administrative design. The architectural reading accepts the justification’s force for the body the Assembly imagined. It denies that the justification survives the body that exists: a permanent Commission of three co-equal decision-makers, each conducting the same elections, each liable to be outvoted, each entitled in the Seshan judgment’s words to a non-ornamental role. A disciplinary rationale drawn for assistants governs principals, and the mismatch, not any single provision, is the asymmetry’s core.

One further comparison fixes the point historically. When Parliament has created watchdog offices by statute, it has repeatedly chosen uniformity or judicial-level protection for whole bodies: the Central Vigilance Commission Act 2003 gives the Central Vigilance Commissioner and Vigilance Commissioners removal only on proved misbehaviour or incapacity after a Supreme Court inquiry on reference, uniformly for all members; the Protection of Human Rights Act follows the same pattern for the National Human Rights Commission’s chairperson and members. Statutory draftsmen of the 1990s and 2000s, working without the Constituent Assembly’s single-member assumption, treated internal uniformity as the obvious default. The Election Commission’s split armour is thus not a considered Indian tradition of graded tenure. It is a survival, a 1949 arrangement for a one-man institution that every later reform, the 1991 Act’s salary parity, the 1993 Act’s majority rule, the 2023 Act’s committee, has modernised around without ever re-cutting.

The Three-Component Map: Naming the Artifact

An argument that cannot be pointed at tends to dissolve into the controversies of the season, so this article fixes its claim in a single labelled artifact that any reader can cite, check against the text of Article 324(5) and carry into the later sections. Table 1: The Three-Component Architectural-Asymmetry Map of Article 324(5) sets out the components, the text that creates each, and the named episode or modification that tested it. Everything after this section is commentary on this table.

Component	What the text does	Whom it favours	The episode or modification that tested it
Removal-procedure asymmetry	Article 324(5), first proviso: the Chief Election Commissioner is removable only in like manner and on like grounds as a Supreme Court judge; second proviso: other commissioners are removable on the Chief Election Commissioner’s recommendation alone	The Chief Election Commissioner	The Gopalaswami recommendation against Navin Chawla, January 2009, and the government’s refusal to act on it
Tenure-protection asymmetry	Article 324(5), first proviso: the Chief Election Commissioner’s conditions of service cannot be varied to his disadvantage after appointment; no parallel words protect the other commissioners, whose equal salary arrived by statute in 1991 and again in 2023	The Chief Election Commissioner	The 1991 Conditions of Service Act and the salary amendments moved during the passage of the 2023 Act
Institutional-political implications	A collegial Commission of equals in voting, upheld in T. N. Seshan v Union of India on 14 July 1995, sits on unequal tenure, so every internal disagreement carries a removal shadow on one side only	Neither office; the asymmetry itself becomes an actor	The 1993 multi-member reconfiguration, the 2009 episode, the post-2023 appointment trajectory under a tenure text left unamended

Read the table against the two framings this article argues with. The constitutional-textual framing, the standard textbook treatment, sees the first two rows as a complete account: the provisions are stated, the comparison is drawn, and the analysis stops at the text. The post-2023 controversy framing sees only the bottom row’s last cell: the fight is about the appointment committee, the Chief Justice’s presence or absence, and the partisan balance of the panel. The architectural-asymmetry reading insists that the three rows are one machine. Removal procedure determines who can threaten whom. Tenure protection determines who can be pressured without being threatened. The institutional politics of the Commission, its dissents, its silences, its unanimities, its leaks, are produced by the interaction of the first two rows, and the post-2023 modifications are best understood as changes made to the machine’s intake, its appointments, while its internal gearing, the asymmetry itself, was left exactly as the Constituent Assembly cut it in 1949.

The Asymmetry Stirs: The Forty-Eight Days of 1989 and the Dhanoa Litigation

The second proviso slept from 26 January 1950 until 16 October 1989. On that day, with a general election weeks away, President R. Venkataraman, acting on the advice of the Rajiv Gandhi government, appointed two Election Commissioners, S. S. Dhanoa and V. S. Seigell, converting the Commission into a three-member body for the first time and placing Chief Election Commissioner R. V. S. Peri Sastri at the head of a collegial institution he had not sought. The appointments were lawful on the face of Article 324(2), which lets the President fix the number of commissioners. They were also, politically, an enlargement of the Commission on the eve of polling by the government whose re-election the Commission would conduct, and they were read that way across the opposition benches. The National Front government of V. P. Singh, which won the election of November 1989, answered in kind and in the opposite direction: by amending the conditions-of-service rules with effect from the turn of the year, it abolished the two posts, and Dhanoa and Seigell ceased to hold office in January 1990 without any recommendation from the Chief Election Commissioner, whose recommendation the second proviso makes the sole route to removing an Election Commissioner.

Dhanoa carried the question to the Supreme Court, and the answer in S. S. Dhanoa v Union of India, decided in 1991, drew the line that still governs the proviso’s outer edge. The Court upheld the abolition. The second proviso, it held, protects an Election Commissioner against removal from a subsisting office; it does not prevent the abolition of the office itself, and a commissioner whose post is abolished by a genuine exercise of the rule-making power has not been “removed” within the meaning of Article 324(5) at all. The distinction is defensible as text and dangerous as practice, and the article does not pretend otherwise. Textually, removal and abolition are different acts, and the power to create the posts carried some power to uncreate them. Practically, the episode taught every future government that the proviso’s shield covers the man but not the chair, and that a determined executive holding the rule-making pen could dissolve a commissioner’s tenure without persuading any Chief Election Commissioner to sign anything. The 1989 and 1990 sequence therefore stands as the first demonstration of the asymmetry’s deepest property: the other commissioners’ security is doubly derivative, resting on the Chief’s forbearance against removal and on the executive’s forbearance against abolition. The Chief Election Commissioner, whose office the Constitution itself creates and whose removal the first proviso governs, is exposed to neither route. No one proposed abolishing the Chief’s post in 1990, because the text gave no purchase for the thought.

It is worth pausing on why the V. P. Singh government chose abolition rather than the proviso. The new government had every political reason to distrust commissioners appointed by its predecessor on the eve of an election it had unexpectedly won. The proviso route required a recommendation from Peri Sastri, who had conducted the election and had no quarrel of record with his imposed colleagues. The abolition route required only an amendment to rules the main clause of Article 324(5) had left in presidential hands. The episode is, in miniature, the whole architectural lesson: where a constitution distributes protection unevenly, political conflict flows to the unprotected point. The commissioners of 1989 fell not because anyone proved a ground against them, nor because the Chief recommended it, but because the architecture left a third door beside the two the Assembly had argued about, and a government walked through it within ten weeks of taking office.

October 1993: The Asymmetry at Scale and the Seshan Judgment

The permanent working of the asymmetry begins on 1 October 1993, when the government of P. V. Narasimha Rao promulgated an ordinance appointing M. S. Gill and G. V. G. Krishnamurthy as Election Commissioners alongside Chief Election Commissioner T. N. Seshan, converting the Commission into a three-member body by statute-backed design rather than by eve-of-election improvisation. The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Amendment Act 1993 regularised the arrangement, fixed parity of salary for all three members at the level of a Supreme Court judge, and provided that the Commission’s business would be transacted unanimously where possible and by majority where the members differed. The assertive-commissioner-architectural-shift that Seshan himself had driven since December 1990, the strict enforcement of the Model Code, the insistence on photo identity cards, the postponement of elections where the machinery was unready, acquired in October 1993 two colleagues with votes equal to his own. Seshan’s response was to litigate the architecture. In T. N. Seshan, Chief Election Commissioner of India v Union of India, he challenged the appointments and the parity of decision-making, arguing in substance that the Chief Election Commissioner was constitutionally superior, that the other commissioners were his advisers, and that the 1993 reconfiguration was a device to dilute an inconvenient officeholder.

The Constitution Bench answered on 14 July 1995, and the holding must be stated as a holding, because later debate has blurred it. The Court upheld the multi-member Commission and the appointments. It held that the Chief Election Commissioner is not a superior authority over the other commissioners but the Commission’s chairman, first among equals, primus inter pares, and that the Election Commissioners are not ornamental advisers: if the Chief’s word were final in everything, the Court reasoned, the other commissioners would be rendered non-functional, which the text could not intend. It held that the Commission’s decisions are to be taken by unanimity where possible and by majority where the members differ, a rule the 1993 Act had already written and the judgment confirmed, with the practical consequence that the Chief Election Commissioner can be outvoted two to one in his own Commission. And it held, critically for this article, that the special removal protection of the first proviso exists to secure the independence and permanence of the institution, not to mark the Chief’s personal rank above his colleagues. The judgment thus equalised the Commission’s authority while leaving its tenure asymmetry untouched, indeed while explaining the asymmetry away as an institutional safeguard rather than a personal privilege. Two commissioners who could outvote the Chief on Tuesday remained removable on the Chief’s recommendation on Wednesday. The Court saw the point; the Law Commission’s later report shows the point was seen widely; neither the Court in 1995 nor Parliament in the decades after chose to close the gap by the only means available, a constitutional amendment of the second proviso or an extension of the first.

The institutional consequences ran exactly where the asymmetry map predicts. Seshan, outvotable and unable either to dominate his colleagues or to initiate their removal on any plausible ground, fought them through the press and through administrative obstruction, declining at points to assign them work commensurate with their votes. Gill and Krishnamurthy, equal in the meeting room and derivative in tenure, built their positions through the majority rule the judgment had guaranteed them. Observers of the 1990s Commission described a body that functioned, conducted the general elections of 1996 credibly, and yet generated a standing public drama of internal precedence, precisely because authority and security had been assigned by different logics. Authority followed the collegial principle: three members, equal votes, majority rule. Security followed the founding pyramid: one armoured office, two borrowed ones. Every later crisis of the Commission’s internal life, including the gravest of them in 2009, is a variation on that dissonance.

Which judges decided Anoop Baranwal, and what did the junior-most opinions add?

The Constitution Bench that decided Anoop Baranwal v Union of India on 2 March 2023 consisted of Justice K. M. Joseph, Justice Ajay Rastogi, Justice Aniruddha Bose, Justice Hrishikesh Roy and Justice C. T. Ravikumar. Justice Joseph wrote the principal judgment, and Justice Rastogi concurred separately, proposing removal parity for Election Commissioners.

That concurring proposal matters beyond its length, because it is the only judicial text in the whole trajectory that addresses the second proviso head-on. Justice Rastogi reasoned that an Election Commissioner who can be removed through a process weaker than the Chief’s cannot be expected to function with the same fearlessness, and that until Parliament or a constitutional amendment equated the position, the grounds for removing an Election Commissioner should track the grounds for removing the Chief. The proposal did not command the Bench as an operative direction; the operative direction concerned appointments. It stands instead as a recorded judicial invitation, from within the very judgment that dominates discussion of the institution, to attend to the tenure asymmetry. Commentary on Anoop Baranwal has largely walked past the invitation, absorbed by the appointment committee the judgment created. The architectural reading walks toward it: the case modified who selects the commissioners and, in a concurrence, pointed at the unmodified clause that governs how unequally they may be unselected.

The Proviso Fired and Refused: Gopalaswami, Chawla and 2009

In the last week of January 2009, Chief Election Commissioner N. Gopalaswami wrote to President Pratibha Patil recommending the removal of Election Commissioner Navin Chawla. The recommendation rested on a petition by the Bharatiya Janata Party, the principal opposition party, accusing Chawla of partisan functioning, including allegations that election schedules and Commission deliberations had leaked to Congress politicians; an earlier petition in 2006, signed by L. K. Advani as Leader of the Opposition and 204 members of Parliament, had sought Chawla’s removal from President A. P. J. Abdul Kalam and had been forwarded into the same constitutional thicket. Gopalaswami, who was to retire on 20 April 2009 with Chawla next in seniority to succeed him, formed the view that Chawla was unfit to continue, and he acted, on his own stated reading of the proviso, suo motu: no government had referred the complaint to him, and the Supreme Court’s 2007 order in the related petitions had left his power to entertain such a representation undecided, recording only that a representation could be made and that the government’s remedy, if the Chief erred, was to come to court. His letter of January 2009 was the first and remains the only exercise of the recommendation power in the second proviso’s history, and everything about what followed exposed the clause’s unwritten half.

The government of Prime Minister Manmohan Singh rejected the recommendation, and President Patil, on the government’s advice, recorded a considered opinion declining to remove Chawla. The government’s stated position, articulated through Law Minister H. R. Bhardwaj and the Rashtrapati Bhavan communiqué of 1 March 2009, had several strands, and fairness requires stating them at their strongest. The government argued that the Chief Election Commissioner could not convert a partisan petition into a removal process on his own motion without a reference or an inquiry, that the proviso’s recommendation was a safeguard interposed between the executive and the commissioner rather than a unilateral power of dismissal vested in the Chief, and that the timing, on the eve of a general election and weeks before Gopalaswami’s own retirement, made the recommendation unusable as the basis for so grave a step. The opposition’s stated position was the mirror image: the BJP called the rejection a political decision on a constitutional matter and argued that a recommendation surviving scrutiny could not be set aside by the very executive the removed commissioner was accused of favouring. Chawla succeeded Gopalaswami as Chief Election Commissioner on 21 April 2009, conducted the general election of that year, and served until July 2010, protected in the end not by the proviso, which had been turned against him, but by the executive’s refusal to complete the act the proviso authorises.

The legal profession’s argument over the episode mapped the clause’s ambiguities with unusual completeness, and the map is worth preserving because a future episode will be fought on the same terrain. Gopalaswami’s own affidavit position, maintained since the Supreme Court proceedings of 2007, was that the Chief Election Commissioner could entertain a representation against a commissioner and recommend removal on his own assessment, the proviso naming no other initiator and no other gate. The government’s law officers answered that a recommendation so made remained advice the President, acting on the Council of Ministers’ counsel, could weigh and decline, and that treating it as self-executing would make the Chief the effective appointing and removing authority over his colleagues, a concentration the Seshan judgment had rejected in the decision-making sphere. Former Attorney General Soli Sorabjee, who had earlier defended the substance of the complaint against Chawla, publicly reconsidered the recommendation’s timing and binding force as the episode unfolded, holding in the end that it did not bind the government, a shift his critics on the opposition benches attacked and his defenders described as the ordinary refinement of a lawyer’s view as facts developed. Constitutional commentators divided on a further question the text leaves open: whether a recommendation must be preceded by some inquiry at which the commissioner can answer, importing natural justice into a clause that mentions no hearing. No court has settled any of these questions, because the refusal of March 2009 ended the controversy before a justiciable removal existed. The clause that governs two seats of the Commission therefore stands, after its single use, with its initiator, its procedure, its standard and its binding force all unresolved, a condition that would be thought intolerable in the tenure law of any comparable office and that persists here only because the episode closed politically rather than legally.

For the architectural reading, 2009 is the experiment that isolates the variable. The second proviso is usually described as making Election Commissioners dependent on the Chief Election Commissioner. The episode showed they are dependent on a conjunction: a Chief willing to recommend and a government willing to accept. Remove either element and the commissioner survives; supply both and the commissioner falls without a hearing, a stated ground or a vote. The asymmetry’s political content therefore varies with the triangle of the day, Chief, government and commissioner, and any analysis that stops at the text, the first framing this article argues against, cannot even describe what happened in 2009, when the textually weakest member of the Commission was saved by the textually strongest forces in the system combining to ignore the clause that governed him. The episode also fixed the practical doctrine of the recommendation’s status: it is weighty, it is not self-executing, and its binding force remains, as a matter of decided law, unresolved. A future Chief’s recommendation against a commissioner, met by a future government’s acceptance, would present the courts with the question 2009 postponed, on facts far less forgiving.

Working the Asymmetry: Succession, Dissent and the Ladder Between 1996 and 2019

Between the Seshan judgment and the Chawla episode, the Commission settled into the collegial routine the judgment had mandated, and the asymmetry’s effects changed register: less theatrical than the 1990s, more structural. M. S. Gill, appointed a commissioner over Seshan’s objection in 1993, succeeded him as Chief Election Commissioner in December 1996 and served until 2001, an elevation that followed the convention of seniority the system had adopted in the absence of any statutory ladder. The convention matters to the tenure architecture, because it makes the second proviso cut deeper than its text suggests. An Election Commissioner is not merely a colleague of the Chief; he is ordinarily the Chief in waiting, next in the seniority line for the armoured office. His incentives therefore run in two directions at once. Dissent builds the public record on which his reputation, and the committee-free elevation he expects, will rest. Deference protects his relations with the incumbent Chief whose recommendation alone can end his tenure before the ladder reaches him. J. M. Lyngdoh’s tenure as Chief from 2001 to 2004, and the succession of B. B. Tandon, N. Gopalaswami, Navin Chawla, S. Y. Quraishi, V. S. Sampath, H. S. Brahma, A. K. Joti, O. P. Rawat, Sunil Arora and Sushil Chandra across the following decade and a half, kept the seniority ladder intact: every Chief in that line had first served as a commissioner under the weaker proviso, and each had made his peace with its terms on the way up. No one who has climbed a ladder proposes, on reaching its top, to saw off the rungs that disciplined the climb, and the seniority convention may explain part of the political system’s persistent indifference to removal parity: the only officeholders positioned to demand it are those who expect shortly to hold the stronger end of it.

The second structural effect concerns dissent and the record. A collegial regulator’s legitimacy rests partly on visible internal argument, and the Commission’s rules for transacting business, framed under the 1993 Act’s scheme and confirmed in the Seshan judgment, let decisions carry by majority. What a majority decision does with the minority’s reasons is a separate question, and in May 2019 it became the Commission’s public question. Election Commissioner Ashok Lavasa recorded dissents from the majority’s decisions clearing speeches by Prime Minister Narendra Modi and BJP president Amit Shah of Model Code violations during the general election campaign, and objected when the Commission’s final orders issued without his dissenting views. The Commission’s majority position, stated at the time, was that dissent in matters of the Model Code, which the Commission treated as administrative rather than quasi-judicial, need not be recorded in the orders themselves, a position Lavasa contested in writing before the full Commission. The episode is usually filed under transparency, and it belongs there; but its tenure dimension is the one this article exists to notice. A judge of the Supreme Court who dissents pays no institutional price for the dissent: his tenure is armoured, his colleagues hold no key to it, and his dissent is published as of right in the same report as the majority. A commissioner who dissents holds his tenure at the conjunction of a Chief’s forbearance and a government’s restraint, and publishes, in the first instance, only if the majority permits the record to carry his view. Lavasa’s dissents became public through the press and through his own letters; he left the Commission in August 2020 for a vice-presidency of the Asian Development Bank, his six-year term unexpired, and no removal was ever proposed against him by anyone. The architectural reading claims nothing crude about causation. It observes that the system asks its commissioners to supply, from personal courage, the independence that its text supplies, from structure, to the Chief alone, and that the supply has varied with the person exactly as a structural analysis would predict.

The third effect is the quietest: the shortening of the Chief’s own tenure at the top of the ladder. Because commissioners are appointed late in administrative careers and elevated by seniority, the armoured office has been held for shrinking periods. Sukumar Sen served as Chief for more than eight years, from 1950 to 1958. K. V. K. Sundaram served for nine, from 1958 to 1967. By the decades after 2004, the Court in Anoop Baranwal would observe, the tenure of a Chief Election Commissioner had slid to a few hundred days in several cases, as seniority elevation brought commissioners to the apex with little of their six years left. The slide matters here because it compounds the asymmetry: the office with the strongest protection is held for the shortest time, and the institution’s centre of gravity shifts toward the permanent secretariat and toward whichever commissioner has the longest remaining runway. The 2023 Act’s aggregate cap, six years across both offices, formalised the arithmetic without changing it. A tenure architecture designed in 1949 for a young, long-serving election chief, flanked temporarily by assistants, operates in the twenty-first century on elderly, short-serving chiefs flanked permanently by colleagues whose road to the same office runs through the chief’s own goodwill. Every element of that sentence is a provision working exactly as written. The failure, if it is one, is architectural, which is the level at which this article has insisted the analysis be done.

Thirty Years of Unadopted Repairs: Goswami, the Venkatachaliah Commission and the Law Commission

The asymmetry was diagnosed officially long before it was litigated. The Committee on Electoral Reforms of 1990, chaired by Law Minister Dinesh Goswami in the V. P. Singh government, the same season that saw the Dhanoa posts abolished, recommended that the Chief Election Commissioner be appointed by the President in consultation with the Chief Justice of India and the Leader of the Opposition in the Lok Sabha, and that Election Commissioners be appointed with the Chief Election Commissioner also consulted. A bill introduced in May 1990 carried a version of the consultation design into Parliament; it was withdrawn in 1993, the year the multi-member Commission arrived by ordinance instead. The National Commission to Review the Working of the Constitution, chaired by Justice M. N. Venkatachaliah and reporting in 2002, widened the appointing body further, proposing a committee of the Prime Minister, the Leaders of the Opposition in both Houses, the Speaker of the Lok Sabha and the Deputy Chairman of the Rajya Sabha. The Second Administrative Reforms Commission added its voice to the collegium idea. Across three decades the reform conversation about the Commission circled one point with remarkable consistency, the appointment door, and touched the tenure asymmetry only when the Law Commission forced the subject.

The 255th Report did force it. Submitted on 12 March 2015 under Justice A. P. Shah’s chairmanship, the Law Commission’s report on electoral reforms made three connected recommendations that together amount to the fullest official statement of the architectural critique. It recommended a three-member selection committee for all appointments to the Commission, the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India, the composition the Supreme Court would adopt eight years later. It recommended that elevation of an Election Commissioner to Chief Election Commissioner follow seniority unless the committee recorded reasons of unfitness in writing, protecting the internal ladder from executive rearrangement. And it recommended, in terms, that Article 324(5) be amended so that the removal procedure for Election Commissioners equals that of the Chief Election Commissioner, giving all members equal constitutional protection in removability. The third recommendation is the one that has never been taken up by any government, any private member’s bill of consequence or any parliamentary committee report. It is also the only one of the three that requires a constitutional amendment, which may explain the silence: appointment reform could always be promised by statute or delivered by judgment, while tenure parity demands the special majorities of Article 368 and an admission that the founding text itself distributes independence unevenly.

Why did the reformers who did engage the point regard parity as essential rather than cosmetic? The Law Commission’s reasoning, echoed by E. Sridharan in his essays on the institutional stresses of the post-2014 period, runs through the psychology of the collegial body. A commissioner who may one day need the Chief’s goodwill to survive in office, and who in any event holds salary and conditions by statute rather than by constitutional freeze, carries a structural incentive toward deference that no code of conduct can repeal. The incentive need never be acted on to do its work; it operates in the drafting of dissent notes, in the decision to record or soften a disagreement, in the calculation of whether a public difference with the Chief is worth a private risk. Ashok Lavasa’s dissents of 2019, on the Commission’s clean chits to speeches by the Prime Minister and the BJP president during that general election, and his insistence that dissent be recorded in the Commission’s orders, showed a commissioner declining the deference the structure invites; his departure from the Commission in 2020, to an Asian Development Bank vice-presidency before his term would have run to 2022, closed the episode without any removal ever being proposed. The architectural reading does not need to claim that the asymmetry determined any of these choices. It claims the weaker thing that the evidence fully supports: the asymmetry sets the price of independence differently for different members of the same body, and it has done so in every internal controversy from 1993 onward.

Anoop Baranwal: The Court Rebuilds the Appointment Door and Leaves the Tenure Wall Standing

Anoop Baranwal filed his petition in 2015, asking the Supreme Court to take the appointment of election commissioners out of the executive’s sole hands. The petition travelled the long road of Indian public interest litigation, referred toward a Constitution Bench as the years passed, and was decided on 2 March 2023 by the five judges named earlier in this article. The judgment’s reasoning, in Justice K. M. Joseph’s principal opinion, began from the vacuum: Article 324(2) makes appointments subject to any law made by Parliament, Parliament had made no law governing appointments in seventy-three years, and the Constituent Assembly’s debates showed an appointment process resting with the executive alone had not been the founders’ considered choice but their unexamined default. Against that vacuum the Court set the Goswami Committee, the Venkatachaliah Commission and the Law Commission’s 255th Report, three decades of official recommendations for a committee, and held that the independence of the Election Commission, on which the fate of parties and of democracy itself largely rests, in the judgment’s phrase, could not be reconciled with a monopoly of the executive in choosing the umpire. The operative direction followed: until Parliament enacts a law, the Chief Election Commissioner and the Election Commissioners shall be appointed by the President on the advice of a committee of the Prime Minister, the Leader of the Opposition in the Lok Sabha, or in the absence of a recognised Leader the leader of the largest opposition party there, and the Chief Justice of India.

The holding’s limits are as important as its content, and the architectural reading depends on keeping them in view. The Court modified the appointment architecture. It did not modify the tenure-security architecture, and it did not purport to: Article 324(5) was not amended, construed down or supplemented, and the direction was expressly temporary, a norm to hold the field until a law is made by Parliament, in the judgment’s own closing words. Justice Rastogi’s concurrence, proposing ground-parity for the removal of Election Commissioners, shows that the Bench had the tenure question within sight and left it, as a bench must leave a question not squarely before it, to the amending and legislative powers. The petition papers and the written submissions in the case, preserved in the Supreme Court Registry and drawn on sparingly in commentary, had in fact ranged wider than the appointment question, arguing from the internal consequences of unequal tenure to the need for a systemic redesign; the judgment’s discipline in answering the appointment question alone is precisely what makes the case, for this article’s purposes, a modification at the intake of the institution. New commissioners would arrive by a new door, carrying the same uneven armour as every commissioner since 1993: the Chief among them protected like a judge, the others protected by the Chief.

The principal judgment also ranged across the tenure record in a way the later commentary has underused. Surveying the succession of Chief Election Commissioners, the Court recorded that the office’s tenure had compressed across the decades, from occupants who served the better part of a decade in the republic’s first years to chiefs after 2004 whose time at the apex ran to a few hundred days, and it treated that compression as part of the pathology of executive-dominated selection: a government choosing the umpire chooses, in the same act, how long the umpire’s independence has to run. The observation belongs to the appointment half of the case, since nomination ages and seniority arithmetic are appointment questions. Yet it sits one step from the tenure asymmetry, and the step is short. Short chiefly tenures mean the Commission’s permanent members spend most of their service in the weaker office, and its strongest protection guards a chair that turns over faster than the electoral cycle it exists to police. M. R. Madhavan’s writing for PRS Legislative Research on the post-judgment landscape made the adjacent point about process, that the judgment’s committee would matter only if the wider service architecture, tenure included, let its appointees act independently once chosen. The Court’s direction, the concurrence’s proposal and the analysts’ caution thus triangulate the same conclusion from three positions: selection reform and tenure reform are separate projects, and 2023 completed only the first.

The sequence that followed the judgment belongs to the record of the asymmetry operating in the wild. Appointments pending when the judgment landed were completed under the committee norm it prescribed, and for a few months of 2023 the tripartite committee of Prime Minister, Leader of the Opposition and Chief Justice was the law of appointments by judicial direction. Political argument about the judgment divided immediately and predictably. The government’s spokesmen noted, correctly on the text, that the Court itself had made the norm provisional and had invited Parliament to legislate. The opposition and the petitioning organisations, including the Association for Democratic Reforms, treated the committee’s composition as the judgment’s substantive achievement and any departure from it as a defeat of the judgment’s purpose. Suhrith Parthasarathy, writing in the Economic and Political Weekly in 2023, pressed the analytical version of that view, arguing that the judgment’s logic tied the Commission’s independence to the dispersal of appointing power among executive, opposition and judiciary, so that a statute re-concentrating that power would contradict the judgment’s reasoning even while obeying its letter. That argument set the terms on which the statute, when it came nine months later, would be judged.

Why did the Baranwal direction carry its own expiry date?

The direction carried its own expiry because the Court framed it as gap-filling under Article 324(2), a norm to operate only until Parliament made a law on appointments. The judges tied the committee to the legislative vacuum and declared that the norm would hold good till a law is made by Parliament.

The 2023 Act: Parliament Answers on Appointments and Restates Tenure

Parliament legislated within the year. The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill was introduced in the Rajya Sabha in August 2023, passed by the Rajya Sabha on 12 December 2023 and by the Lok Sabha on 21 December 2023, received the President’s assent on 28 December 2023, and came into force on 2 January 2024, replacing the 1991 Act. Its provisions must be stated exactly, because the controversy around it has generated more paraphrase than text. A Search Committee, headed by the Minister of Law and Justice with two members not below the rank of Secretary to the Government of India, prepares a panel of five persons for each vacancy. A Selection Committee, the Prime Minister as chairperson, the Leader of the Opposition in the Lok Sabha or the leader of the single largest opposition party there, and a Union Cabinet Minister nominated by the Prime Minister, recommends the appointment, and the President appoints on that recommendation; the Act expressly preserves the Selection Committee’s power to consider a person other than those in the Search Committee’s panel. Eligibility is confined to persons who hold or have held a post equivalent to Secretary to the Government of India and who are persons of integrity with knowledge and experience in the management and conduct of elections. The term is six years from assumption of office or until the age of sixty-five, whichever is earlier; reappointment is barred; an Election Commissioner elevated to Chief Election Commissioner may not exceed six years in aggregate across both offices. Salary and allowances, after official amendments moved during the Bill’s passage replaced the introduced text’s equivalence with the Cabinet Secretary, stand equal to a judge of the Supreme Court. The Act restates the removal architecture of Article 324(5) without altering it: the Chief Election Commissioner is removable only in like manner and on like grounds as a Supreme Court judge, the other commissioners only on the Chief Election Commissioner’s recommendation, and it adds a protection of the commissioners against legal proceedings for acts done in the discharge of their functions.

When did the 2023 appointment Act come into force?

The Act received the President’s assent on 28 December 2023 and came into force on 2 January 2024, replacing the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act 1991. Its first appointments followed within weeks, when the Selection Committee it created met in March 2024.

The substitution at the Act’s centre is the one the brief for this article directs attention to, and it deserves flat statement. The Baranwal committee’s third seat belonged to the Chief Justice of India. The Act’s third seat belongs to a Union Cabinet Minister nominated by the Prime Minister. On any division inside the committee, the government’s nominees hold two of the three votes, a structural fact about the composition that no reading of the Act can argue away and that the government’s defenders, to their credit, generally did not dispute; they disputed its significance. The government’s stated rationale, given by Law Minister Arjun Ram Meghwal in the parliamentary debates of December 2023, was that the Bill stood in consonance with the Supreme Court’s direction, since the Court had legislated an interim norm and invited a statute; that the presence of the Leader of the Opposition gave the process the bipartisan element the Court had sought; and that the judiciary’s participation in selecting the election umpire raised separation-of-powers questions of its own, a judge helping to choose the commissioners whose decisions the judge’s court would later review. The critics’ stated objections, pressed by the Congress and other opposition parties in debate, by the Association for Democratic Reforms in its challenge petitions, and in M. R. Madhavan’s analyses for PRS Legislative Research through the Bill’s passage, were that a committee the executive can always outvote reproduces the pre-2023 monopoly under a collegial form, that the power to reach beyond the panel of five empties the Search Committee of discipline, and that the eligibility confinement to Secretary-rank officers narrows the field to the administrative services the Commission is meant to stand apart from. Challenges to the Act’s constitutional validity were filed within weeks, and in March 2024 the Supreme Court declined to stay the Act’s operation, leaving the challenges to be heard on their merits while appointments proceeded under the new law.

For the architectural reading, the Act’s deepest feature is not the substitution but the silence beneath it. The first comprehensive statute on the Commission’s service architecture in the institution’s history addressed appointments, eligibility, term, salary, resignation, removal restatement and legal protection, and at no point disturbed the tenure asymmetry that the Law Commission had asked Parliament and the nation to amend in the Constitution itself. Partly this is a matter of legislative competence: the removal asymmetry sits in Article 324(5), and a statute cannot amend it, so the Act’s restatement of the two provisos is all a statute could do. Partly it is a matter of revealed priority: a Parliament moved to legislate within nine months of a judgment about appointments showed no parallel urgency, in the same session or since, to introduce the constitutional amendment the 255th Report had drafted in substance eight years earlier. The post-2023 trajectory thus modified the appointment architecture twice in ten months, once by judgment and once by statute, and modified the tenure-security architecture not at all. Any account of the period that confines itself to the appointment controversy, the second framing this article argues against, will describe 2023 as a year of convulsion for the Election Commission. The architectural account describes it as a year in which everything about the Commission changed except the thing that governs its members’ unequal security, which did not change at all.

The Act in Court: The Challenge Petitions and the Refused Stay

The 2023 Act entered the courts almost as soon as it entered the statute book, and the litigation record is part of the architecture’s working text, because it defines what the Act’s provisions are permitted to do while their validity is undecided. Petitions challenging the Act were filed by, among others, the Congress leader Jaya Thakur and the Association for Democratic Reforms. Their stated grounds, in the petitions and in the public argument of their counsel, converge on a single proposition: that the Act violates the principle of free and fair elections, which the Supreme Court has repeatedly located within the basic structure of the Constitution, by restoring to the executive the effective monopoly over appointments that Anoop Baranwal had dismantled, since a Selection Committee in which the Prime Minister and his own nominee hold two of three seats can never recommend against the government’s preference. The petitioners also attacked the power to appoint from outside the Search Committee’s panel of five as rendering the search stage decorative, and the confinement of eligibility to Secretary-rank officers as narrowing the Commission’s recruitment to the administrative services. The Union government’s stated defence, in its affidavits and in the Attorney General’s submissions, rests on the text of Article 324(2) and the Baranwal judgment itself: Parliament’s power to legislate appointments is expressly reserved by the Constitution, the Court’s committee was declared to operate only until a law was made, and a legislature answering an express judicial invitation cannot be faulted for choosing a composition the Constitution leaves to it. The government has also argued, as it did in Parliament, that the Chief Justice’s presence on a selection panel for a body whose orders the courts review raises separation-of-powers difficulties of its own, and that the Leader of the Opposition’s seat supplies the check the judgment sought.

In March 2024, with two vacancies open and the general election weeks away, the petitioners pressed the Court for an interim stay of the Act. The Court declined. Its reasoning, delivered in the course of refusing interim relief, was that a statute duly enacted cannot be suspended at the threshold on a prima facie view, that striking down or staying the appointment law at that moment would have created uncertainty in the conduct of an imminent general election, and that the challenges would be examined on their merits in due course. The consequence was structural as much as legal: the appointments of 14 March 2024 proceeded under the contested Act, the election of 2024 was conducted by commissioners chosen under it, and the litigation settled into the slower rhythm of a constitutional challenge to be heard after the facts it questions have become the institution’s ordinary life. That rhythm, too, is familiar in the tenure story. The Dhanoa litigation of 1991 was decided after the abolished posts’ occupants had gone home. The Seshan litigation of 1995 ratified a reconfiguration that had been working for two years. Indian courts have generally reviewed the election architecture in arrears, validating or correcting arrangements already absorbed into practice, and the challenge to the 2023 Act follows the pattern whichever way it is eventually decided. For the architectural reading, the litigation’s most telling feature is its agenda: the petitions attack the appointment committee, the panel power and the eligibility clause, the whole intake of the institution, and none of them seeks, because no petition plausibly could, any relief touching the removal asymmetry of Article 324(5), which a court cannot amend and only Parliament can. The tenure architecture is thus doubly insulated from the present controversy, untouched by the statute being challenged and unreachable by the challenge itself.

The Architecture at Work After the Act: The Appointments of 2024 and 2025

The revised architecture produced its first commissioners quickly. Election Commissioner Arun Goel resigned on 9 March 2024, days before the announcement of the general election schedule, and with Anup Chandra Pandey having retired in February 2024, two of the Commission’s three seats stood vacant as the election approached. On 14 March 2024 the Selection Committee met under the new Act, and the President appointed Gyanesh Kumar and Sukhbir Singh Sandhu as Election Commissioners, the first appointments made through the statutory committee. Adhir Ranjan Chowdhury, who sat on the committee as leader of the largest opposition party in the Lok Sabha, there being no recognised Leader of the Opposition in that House, recorded his objection to the procedure by which a shortlist of six names from a pool of hundreds had reached the committee hours before it met, and the objection entered the public record of the architecture’s first working. The general election of April to June 2024 was then conducted by Chief Election Commissioner Rajiv Kumar with the two commissioners the Act had produced, within the institution-under-stress framework that the opening article of this pillar developed.

The second working of the architecture reached the apex itself. Rajiv Kumar’s term ended in February 2025, and on 17 February 2025 the Selection Committee recommended, and the President appointed, Gyanesh Kumar as Chief Election Commissioner, the first Chief chosen under the 2023 Act rather than by the older convention of executive selection tempered after March 2023 by the judicial committee. Rahul Gandhi, by then Leader of the Opposition in the Lok Sabha, recorded a dissent, arguing that appointing a Chief while the constitutional challenge to the Act awaited hearing showed disregard for the Court’s process, and the Congress party’s stated position treated the appointment as the architecture’s flaw made visible. The government’s stated position rested on the statute’s validity and the Court’s refusal of a stay. Both positions are recorded here as their holders stated them; what the architectural reading adds is the observation that the entire contest, committee, dissent, appointment and protest, ran through the intake of the institution, and that the man appointed stepped, on taking office, into the first proviso’s armour, removable only by a double-majority address of Parliament, while the colleagues beside him, one of whom he had served alongside as a fellow commissioner under the weaker proviso, remained exactly where the second proviso has kept every commissioner since 1993. The elevation rule of the Act, capping aggregate service at six years, shortened his available tenure in the office; the tenure asymmetry, uncapped and unamended, governed his security within it. Reformers analysing the appointment files, the Gazette notification of the Act and the certified text of the Baranwal judgment, which circulate in the debate as scanned documents and office files read through utilities such as an office file viewer for Excel, DOCX and PPTX documents, will search those papers in vain for any clause touching the second proviso. It is not there, because no instrument of 2023 or after has touched it.

A forward reference is owed to the reader at this point, and the discipline of this series requires it to be an unlinked one. The appointment architecture’s judicial afterlife, including the challenges to the 2023 Act and the parallel litigation over electoral bonds that produced a Constitution Bench verdict of February 2024, belongs to the later articles of this pillar and the judiciary pillar beyond it, where the post-2024 institutional-judicial trajectory receives its full treatment; the electoral bonds judgment is itself already linked below through the post-2024 institutional-judicial trajectory as delivered in this pillar. What concerns the present article is narrower and, it argues, more fundamental: the tenure question that none of those cases decides.

The Amendment That Has Never Been Moved: What Parity Would Require

Because the asymmetry lives in the constitutional text, its repair has a precise legal address, and precision about the remedy clarifies why the repair never comes. The Law Commission’s 255th Report drafted the remedy in substance: amend Article 324(5) so that the first proviso’s protection, removal only in like manner and on like grounds as a Supreme Court judge, extends to every Election Commissioner. Such an amendment requires, under Article 368, a majority of the total membership of each House and two-thirds of members present and voting in each, and since Article 324 is not among the provisions whose amendment requires ratification by half the state legislatures, Parliament alone could complete it. No federal obstacle stands in the way. Nor does any drafting difficulty: the amendment is a matter of extending one proviso’s subject from “the Chief Election Commissioner” to “the Chief Election Commissioner and the other Election Commissioners,” with the second proviso deleted or retained for Regional Commissioners alone. Governments have carried constitutional amendments of far greater complexity for far smaller stakes, the 101st Amendment’s reconstruction of the fiscal federation among them, within single sessions when the political will existed. The will has never existed for this one, and the reasons repay statement at their strongest on both sides, because the charter of this series requires the defenders of the existing text to be heard as carefully as its critics.

The case against parity, stated at its strongest, has three limbs. The first is discipline: a Commission that must act with speed during elections needs an internal accountability mechanism, and a commissioner removable only by the judicial-address procedure would be, in practice, irremovable for a full six years whatever his conduct, since no Parliament will spend its scarcest resource, floor time and political capital, on an address against an election commissioner of whom most members have barely heard. The Chawla allegations of 2009, leaking of schedules and partisan proximity to the ruling party, are precisely the class of misconduct that is grave for an election umpire and hopeless as an impeachment charge, impossible to prove to the standard of an inquiry committee yet corrosive if left without remedy. The second limb is responsibility: the Chief Election Commissioner answers publicly for the Commission’s credibility, and authority to recommend a colleague’s removal is the counterpart of that answerability, the same logic by which a Chief Justice’s administrative authority over his court’s roster is accepted as the price of holding him responsible for the court’s functioning. The third limb is empirical: in seventy-five years the recommendation power has been exercised once and refused once, the abolition route has been used once and closed by statute-backed permanence since 1993, and no commissioner has ever actually lost office through the asymmetry, so the reform would spend a constitutional amendment on a harm that practice has contained.

The case for parity, stated at its strongest, answers each limb on its own ground. Against discipline: the judicial-address procedure is not the only alternative to the recommendation; Article 317’s model for the Public Service Commission, removal for misbehaviour after a Supreme Court inquiry on reference, supplies a middle architecture, uniform across the body, insulated from both the executive and the Chief, and swift enough when a court reports on a single charge, and the Law Commission’s equality principle could be met at that level as readily as at the judicial level. Against responsibility: the Seshan judgment already severed the Chief’s answerability from command, holding him a chairman who can be outvoted, so the constitution of the Commission’s authority is collegial while the constitution of its tenure is monarchical, and the responsibility argument defends a power the judgment’s logic does not need. Against the empirical limb: the absence of removals measures the power’s success as a deterrent and a discipline on speech, not its absence as a force, and a tenure system whose fairness depends on incumbents never using their legal powers is a system that has outsourced its constitution to character. E. Sridharan’s essays on the institutional stresses of the period after 2014 generalise the point beyond the Commission: India’s constitutional bodies have repeatedly discovered that protections assumed to be formalities become operative facts the moment political conflict intensifies, and that the time to repair a tenure clause is before the crisis that will be governed by its unrepaired text. The amendment has never been moved. Every actor who could move it, the government of the day, holds in the existing architecture a quiet advantage it would have to surrender, and every actor who would benefit from moving it, commissioners in office and oppositions out of power, lacks either the standing or the votes. The asymmetry persists, as it has persisted since 1949, not because it has been defended and won, but because no one’s incentives require its defeat.

Adjudicating the Three Readings, and the Strongest Objection

Three readings of the tenure-security architecture compete, and the article’s charter requires a verdict between them on the evidence assembled. The constitutional-textual reading treats Article 324(5) as a self-sufficient object: state the two provisos, note the difference, and the phenomenon is explained. Its strength is fidelity; its weakness is that it cannot describe 2009, when the text’s weakest officeholder survived because the executive refused the text’s own procedure, nor 1990, when commissioners fell through a door the text does not name. The post-2023 controversy reading treats the period’s real action as the appointment committee, the Chief Justice’s inclusion and exclusion, and the partisan arithmetic of selection. Its strength is that it follows the loudest and in some ways the richest evidence, the Baranwal judgment, the parliamentary debates, the 2024 and 2025 appointments. Its weakness is that it mistakes the institution’s intake for its interior, and it cannot say why the men and women chosen by any committee, judicial, statutory or purely executive, have repeatedly fallen into the same internal pattern of deference, dissent and drama across thirty years and four selection regimes. The architectural-asymmetry reading claims that pattern as its evidence. Selection regimes have changed in 1989, 1993, 2023 and 2024. The internal distribution of security has not changed since 1949. A variable that never varies while outcomes recur is where explanation should look first, and the three-component map assembled here, removal procedure, tenure protection, and the institutional politics their interaction generates, describes the constant beneath the Commission’s changing controversies, within the integrated three-tensions framework of institutional stress that this series applies across its pillars.

The strongest objection to that verdict must be given its full force, because the brief for this article states it fairly and the evidence partly supports it. The objection runs: the post-2023 modifications were appointment-architectural because appointment is where the live constitutional problem was, as the Court found in Baranwal after examining the record of executive selection; the tenure asymmetry, by contrast, has produced exactly one recommendation in seventy-five years, which was refused, and no removal of any commissioner by the proviso route has ever occurred. An asymmetry that never fires, the objection concludes, is a poor candidate for the institution’s defining feature, and an article organised around it reads the architecture against the grain of the trajectory it claims to explain. The answer this article gives is threefold. First, an unfired safeguard shapes conduct precisely by standing unused: the price-of-dissent argument of the Law Commission and of Sridharan does not require a removal to have occurred, only a removal to be possible on terms one’s colleagues do not share. Second, the asymmetry did fire, once, in 2009, and the refusal that saved Chawla established the recommendation’s contested status, so the clause’s practical meaning in any future crisis is genuinely uncertain in both directions, which is itself a tenure condition no judge of the Supreme Court works under. Third, the objection proves the article’s framing point: that the political system, offered repeated occasions to address tenure parity, in 1990, in 2015 and in 2023, addressed appointments every time and tenure never, is a fact about the trajectory that only the architectural reading is organised to notice. The asymmetry question is analytically central even where it is not politically foregrounded, and the claim stands as the brief framed it: the Election Commission’s tenure-security architecture has architectural asymmetry between the Chief Election Commissioner and the other commissioners, and the post-2023 trajectory tested that architecture through modifications that left the asymmetry itself untouched, to be tested again by the next internal crisis of the Commission whenever it comes.

A last word belongs to the evidence discipline of the argument. Every load-bearing fact in this article is a text, a date or a holding that a reader can verify without taking the article’s word for anything: the two provisos of Article 324(5), read in full at the start; the Constituent Assembly debates of 14 and 15 June 1949; the ordinance of 1 October 1993 and the Amendment Act that followed it; the holding of 14 July 1995 that the Chief Election Commissioner is first among equals; the recommendation of January 2009 and the refusal of 1 March 2009; the Goswami Committee of 1990, the Venkatachaliah Commission of 2002 and the 255th Report of 12 March 2015; the judgment of 2 March 2023 and its concurring proposal on removal parity; the assent of 28 December 2023 and the commencement of 2 January 2024; the appointments of 14 March 2024 and 17 February 2025. The framings this article has argued against are not dishonest readings of that record; they are partial ones, and partiality in reading an institution’s architecture has practical consequences, because reform follows the reading. A generation that reads the Commission’s troubles as appointment troubles will keep rebuilding the appointment door, as it did in 2023, and will keep being surprised by the behaviour of the house behind the door. A reading that starts from the tenure architecture predicts the behaviour in advance: collegial in form, hierarchical in security, calm in the years when the Chief and the government and the commissioners pull together, and strained along exactly the seam the second proviso cut in 1949 whenever they do not. That seam is the subject the next controversies of the institution will be about, whether the controversy-holders name it or not, and the three-component map in this article is offered so that, when the seam next opens, the naming is ready.

Frequently Asked Questions

Q: What is Article 324(5)?

Article 324(5) is the clause of the Indian Constitution that governs the conditions of service and tenure of the Election Commissioners and the Regional Commissioners. Its main clause leaves those conditions to rules made by the President, subject to any law made by Parliament. Its first proviso protects the Chief Election Commissioner: he cannot be removed except in like manner and on like grounds as a judge of the Supreme Court, and his conditions of service cannot be varied to his disadvantage after appointment. Its second proviso covers every other Election Commissioner and Regional Commissioner, who cannot be removed except on the recommendation of the Chief Election Commissioner. The clause is the whole constitutional law of tenure security for the Election Commission.

Q: How is the CEC removed?

The Chief Election Commissioner is removed in like manner and on like grounds as a judge of the Supreme Court, under the procedure Article 124(4) prescribes. A removal motion must be signed by at least one hundred members of the Lok Sabha or fifty members of the Rajya Sabha, and if admitted it goes to a three-member inquiry committee under the Judges (Inquiry) Act 1968, which investigates charges of proved misbehaviour or incapacity. Only if the committee finds the charge proved does Parliament vote on an address, and the address must pass each House by a majority of its total membership and by two-thirds of the members present and voting. The President then removes the Chief Election Commissioner by order. No Chief Election Commissioner has ever been removed by this route.

Q: How are other Election Commissioners removed?

An Election Commissioner other than the Chief is removed by the President, but only on the recommendation of the Chief Election Commissioner, under the second proviso to Article 324(5). The text prescribes no parliamentary vote, no inquiry and no stated ground; the recommendation is the single condition the Constitution attaches. Whether the Chief Election Commissioner may make such a recommendation on his own motion, whether it binds the President acting on ministerial advice, and what material it must rest on were all contested in the 2009 episode, when Chief Election Commissioner N. Gopalaswami recommended the removal of Election Commissioner Navin Chawla and the government declined to act, leaving the questions open in decided law. An Election Commissioner may also resign by writing to the President.

Q: What was the Anoop Baranwal verdict?

Anoop Baranwal v Union of India was a Constitution Bench judgment of the Supreme Court delivered on 2 March 2023 by Justice K. M. Joseph, Justice Ajay Rastogi, Justice Aniruddha Bose, Justice Hrishikesh Roy and Justice C. T. Ravikumar. Anoop Baranwal’s petition, filed in 2015, had challenged the executive’s sole control over appointments to the Election Commission. The Court held that Article 324(2) left a legislative vacuum, since Parliament had enacted no appointment law in seventy-three years, and directed that until Parliament legislates, the Chief Election Commissioner and Election Commissioners be appointed by the President on the advice of a committee of the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India. The direction governed appointments only and left the tenure provisions of Article 324(5) untouched.

Q: What is the 2023 ECI Appointment Act?

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act 2023 is the statute Parliament enacted after the Anoop Baranwal judgment. It received the President’s assent on 28 December 2023 and came into force on 2 January 2024, replacing the 1991 conditions-of-service Act. It creates a Search Committee headed by the Minister of Law and Justice to prepare a panel of five names, and a Selection Committee of the Prime Minister, the Leader of the Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister, on whose recommendation the President appoints. It fixes eligibility at Secretary rank or equivalent, a term of six years or until the age of sixty-five, no reappointment, and salary equal to a Supreme Court judge’s.

Q: Who is on the ECI appointment committee?

Under the 2023 Act, the Selection Committee that recommends appointments to the Election Commission has three members: the Prime Minister, who chairs it; the Leader of the Opposition in the Lok Sabha, or where no recognised Leader of the Opposition exists, the leader of the single largest opposition party in that House; and a Union Cabinet Minister nominated by the Prime Minister. A separate Search Committee, headed by the Minister of Law and Justice with two members of Secretary rank, prepares a panel of five persons for the Selection Committee to consider, though the Selection Committee may also consider a person outside the panel. This composition replaced the committee the Supreme Court had prescribed in Anoop Baranwal, whose third member was the Chief Justice of India.

Q: Why is the CEC tenure protected?

The Chief Election Commissioner’s tenure is protected because the Constituent Assembly decided in June 1949 that the official who conducts elections must be independent of the executive government whose continuance those elections decide. Dr B. R. Ambedkar, defending the draft article, treated a removal process as demanding as the one for a Supreme Court judge as the practical guarantee of that independence: a Chief Election Commissioner who could be dismissed at the government’s pleasure would conduct the government’s own re-election under a suspended sentence. The protection also covers his conditions of service, which cannot be varied to his disadvantage after appointment, so that pressure cannot be applied through salary or terms instead of removal. The Assembly extended the same reasoning to the institution as a whole, although, as the second proviso shows, it protected the other commissioners by a weaker route.

Q: What conditions of service did the 1991 Act fix for the commissioners?

The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act 1991 converted tenure arrangements that had rested on presidential rules into statute. It fixed a term of six years from the date of assuming office or until the age of sixty-five, whichever came first, for the Chief Election Commissioner and each Election Commissioner. It set the Chief Election Commissioner’s salary equal to that of a Supreme Court judge, and the Election Commissioners’ salaries initially equal to a High Court judge’s, a grading the 1993 amendment raised to parity with a Supreme Court judge alongside the multi-member settlement. Behind the statute stood the constitutional floor of Article 324(5): the Chief Election Commissioner’s conditions of service cannot be varied to his disadvantage after appointment, a guarantee the Act’s fixed term and salary were written to make concrete.

Q: What did N. Gopalaswami’s 2009 recommendation against Navin Chawla show?

It showed that the second proviso to Article 324(5) works only as a conjunction. In January 2009 Chief Election Commissioner N. Gopalaswami recommended to President Pratibha Patil that Election Commissioner Navin Chawla be removed, acting on a Bharatiya Janata Party petition alleging partisan functioning. The government of Manmohan Singh took the stated position that the Chief Election Commissioner could not set a removal in motion on his own authority without a reference or inquiry, and the President declined to remove Chawla, who succeeded Gopalaswami as Chief Election Commissioner that April. The episode, the only exercise of the recommendation power on record, established that a recommendation is weighty but not self-executing, and it left undecided whether such a recommendation binds the government or may be made suo motu.

Q: Can the President remove an Election Commissioner without the CEC’s recommendation?

No. The second proviso to Article 324(5) states that an Election Commissioner or a Regional Commissioner “shall not be removed from office except on the recommendation of the Chief Election Commissioner,” and that condition binds the President, who acts on ministerial advice: the Council of Ministers cannot procure a commissioner’s removal on its own motion. The one demonstrated bypass is not removal at all. In S. S. Dhanoa v Union of India in 1991, the Supreme Court upheld the abolition of two Election Commissioner posts created in October 1989, holding that abolishing the office is not removing its holder within the proviso’s meaning. Within a subsisting office, however, the recommendation is an absolute constitutional precondition, which is why control of the recommendation power matters so much to the Commission’s internal balance.

Q: What did the Law Commission’s 255th Report recommend on removing Election Commissioners?

The Law Commission’s 255th Report on Electoral Reforms, submitted on 12 March 2015 under the chairmanship of Justice A. P. Shah, recommended that Article 324(5) be amended to equate the removal procedure of the Election Commissioners with that of the Chief Election Commissioner, so that every member of the Commission would hold equal constitutional protection in matters of removability. The same report recommended appointment by a three-member committee of the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India, and elevation to Chief Election Commissioner by seniority unless the committee recorded reasons of unfitness in writing. The appointment recommendation was adopted by the Supreme Court in Anoop Baranwal in 2023. The removal-parity recommendation has not been adopted by any government.

Q: What did Justice Rastogi’s concurring opinion in Anoop Baranwal propose?

Justice Ajay Rastogi, concurring separately in Anoop Baranwal v Union of India on 2 March 2023, addressed the tenure question that the principal judgment’s operative direction left aside. He proposed that Election Commissioners should be removable on the same grounds and in the same manner as the Chief Election Commissioner, reasoning that a commissioner exposed to a weaker removal process cannot be expected to work with the same independence as the Chief whom he may have to outvote or dissent from. The proposal was a concurring observation rather than part of the Bench’s operative direction, which concerned appointments, so it changed no law. It remains the clearest judicial statement that the asymmetry inside Article 324(5), between the first proviso’s judge-like protection and the second proviso’s recommendation route, is a defect awaiting legislative or constitutional repair.

Q: How does the Search Committee under the 2023 Act work?

The 2023 Act creates a two-stage appointment process. At the first stage, a Search Committee, headed by the Minister of Law and Justice and including two members who are not below the rank of Secretary to the Government of India, prepares a panel of five persons considered suitable for appointment as Chief Election Commissioner or Election Commissioner. Eligibility for the panel is confined to persons who hold or have held a post equivalent to the rank of Secretary to the Government of India and who are persons of integrity with knowledge and experience in the management and conduct of elections. The panel goes to the Selection Committee, which recommends one name to the President for each vacancy. The Act expressly allows the Selection Committee to consider a person who is not on the panel of five.

Q: What term and salary does the 2023 Act fix for the commissioners?

The 2023 Act fixes a term of six years from the date a Chief Election Commissioner or Election Commissioner assumes office, or until the age of sixty-five years, whichever is earlier. Reappointment is barred, and where an Election Commissioner is elevated to Chief Election Commissioner, the aggregate of the two terms cannot exceed six years, so elevation late in a term yields a short tenure as Chief. On salary, the Bill as introduced in August 2023 proposed equivalence with the Cabinet Secretary, but official amendments moved during the Bill’s passage in December 2023 restored the position under the earlier 1991 Act: the salary and allowances of the Chief Election Commissioner and the Election Commissioners are equal to those of a judge of the Supreme Court. Pension received from earlier government service is set off against that salary, disability pension excepted.

Q: How were Gyanesh Kumar and Sukhbir Singh Sandhu appointed in March 2024?

They were the first Election Commissioners appointed under the 2023 Act. Two vacancies had opened: Anup Chandra Pandey retired in February 2024 and Arun Goel resigned on 9 March 2024, days before the general election schedule was announced. The Search Committee prepared its panel, the Selection Committee of Prime Minister Narendra Modi, a nominated Union Cabinet Minister and Adhir Ranjan Chowdhury, who sat as leader of the largest opposition party in the Lok Sabha, met on 14 March 2024, and the President appointed Gyanesh Kumar and Sukhbir Singh Sandhu on its recommendation. Chowdhury recorded his objection that the committee had received a shortlist of six names drawn from a pool of hundreds only hours before the meeting. The two commissioners took office in time to conduct the general election of April to June 2024 alongside Chief Election Commissioner Rajiv Kumar.

Q: What happened to the Election Commissioner posts created in October 1989?

The posts were abolished within three months, and the abolition was upheld by the Supreme Court. President R. Venkataraman appointed S. S. Dhanoa and V. S. Seigell as Election Commissioners on 16 October 1989, on the eve of that year’s general election, making the Commission three-member for the first time under Chief Election Commissioner R. V. S. Peri Sastri. The National Front government of V. P. Singh, which won the election, amended the conditions-of-service rules to abolish the two posts, and both men ceased to hold office in January 1990 without any recommendation from the Chief Election Commissioner. In S. S. Dhanoa v Union of India in 1991, the Supreme Court held that abolition of a post is not removal of its holder, so the second proviso to Article 324(5) was not breached. The episode exposed abolition as a route around the proviso.

Q: Why did the Constituent Assembly protect the Chief Election Commissioner like a judge?

Because the Assembly treated the conduct of elections as the foundation of every other democratic guarantee and wanted the election chief beyond the executive’s reach. Debating the draft article on 14 and 15 June 1949, Dr B. R. Ambedkar argued that the Election Commission had to stand outside the control of the government of the day, since a machinery answerable to the ministry would conduct the ministry’s own re-election. Members such as Professor Shibban Lal Saksena pressed for even stronger safeguards, including parliamentary confirmation of the appointment, which the Assembly did not adopt. The safeguard it did adopt was tenure: removal only in like manner and on like grounds as a judge of the Supreme Court, with service conditions frozen against disadvantageous change. The Assembly expected the Commission to consist ordinarily of the Chief alone, which is why the protection was concentrated on his office.

Q: Does the 2023 Act change the removal procedure in Article 324(5)?

No, and as an ordinary statute it could not. The removal asymmetry sits in the constitutional text, so changing it would require a constitutional amendment under Article 368. What the 2023 Act does is restate the existing position in statutory form: the Chief Election Commissioner is removable only in like manner and on like grounds as a judge of the Supreme Court, and the other Election Commissioners are removable only on the recommendation of the Chief Election Commissioner. The Act’s operative changes all concern the appointment side of the architecture, the Search Committee, the Selection Committee, eligibility, term and salary, together with a protection against legal proceedings for acts done in the discharge of official functions. The Law Commission’s 2015 recommendation to amend Article 324(5) for removal parity remains unimplemented.

Q: Why do critics of the 2023 Act focus on the Selection Committee’s composition?

Because the composition determines who can prevail when the committee divides. The Anoop Baranwal committee of 2023 placed the Prime Minister, the Leader of the Opposition and the Chief Justice of India on the panel, so no single interest commanded a majority. The Act replaced the Chief Justice with a Union Cabinet Minister nominated by the Prime Minister, which gives the government’s side two of the three votes on any contested choice. Critics, including the Congress party in the parliamentary debates of December 2023, the Association for Democratic Reforms in its challenge petitions and analysts such as M. R. Madhavan of PRS Legislative Research, argue that this reproduces executive control in collegial form. Suhrith Parthasarathy argued in the Economic and Political Weekly that the substitution contradicts the reasoning of the Baranwal judgment even where it complies with the judgment’s provisional letter. Constitutional challenges raising these objections remain before the Supreme Court.

Q: What is the three-component architectural-asymmetry map?

It is the analytical artifact this article constructs to make the tenure argument citable. The map reads Article 324(5) as three connected components. The first is removal-procedure asymmetry: the Chief Election Commissioner is removable only by the parliamentary address procedure used for Supreme Court judges, while the other commissioners are removable on the Chief Election Commissioner’s recommendation alone. The second is tenure-protection asymmetry: only the Chief’s conditions of service are constitutionally frozen against disadvantageous variation, while the other commissioners’ equal salary and terms rest on statute, written in 1991 and rewritten in 2023, and amendable by ordinary majority. The third is the institutional politics the first two generate inside a collegial body of equal votes, visible in the Seshan years after 1993, the Chawla episode of 2009 and the dissent controversies of 2019. The post-2023 changes, the Baranwal judgment and the 2023 Act, modified appointments and left all three components standing.