Shashi Tharoor: CEC diminishes credibility of our electoral system

In Parliament, opposition lawmakers will attempt to leverage legislative mechanisms to challenge the CEC’s standing. Having previously submitted notices seeking his removal on grounds of partiality, which were declined by the presiding officers of both houses, Congress legislators, in partnership with INDIA bloc allies, are preparing fresh notices of impeachment. However, the constitutional threshold for removing a CEC is exceptionally high, deliberately modelled on the impeachment procedure reserved for a Supreme Court judge. Under Section 11 of the 2023 Chief Election Commissioner and Other Election Commissioners Act, a commissioner may resign by writing to the President, but dismissal requires the admission of a petition by parliamentary leadership, followed by a majority vote in both houses, making involuntary removal nearly impossible without government backing.

This is further complicated by the political realities of the current government, which operates as a coalition rather than a single-party majority. Key coalition allies within the ruling alliance have voiced concerns, demanding transparency and formal explanations regarding internal decisions and procedures of the Election Commission of India (ECI). It is true that the BJP’s allies have demonstrated remarkable complaisance during the first two years of the current NDA government, and are usually only too happy to acquiesce in the government’s stand on any issue. But because the governing coalition relies on these partners to maintain its majority, public questioning from allies can strip away much of the administrative insulation the executive might otherwise offer to a constitutional appointee like the CEC. If an influential BJP leader like former education minister Dharmendra Pradhan can be deemed dispensable, a retired bureaucrat like Gyanesh Kumar can be dropped all the more easily if the liabilities around him make him too hot to handle.

Concurrently, the conflict has reached the judiciary through two separate lines of challenge before the Supreme Court. The first directly challenges specific administrative and technological decisions undertaken by the CEC, alleging that key policies and software modifications were implemented unilaterally without a unanimous consensus of the three-member ECI. The second petition targets the constitutionality of the 2023 selection process itself, which replaced the CJI on the selection panel with a Union cabinet minister, thereby shifting the panel’s balance to an executive-dominated two-to-one majority. Both can open a Pandora’s Box of controversies surrounding the ECI.

Adding to the legal complexity is Section 16 of the 2023 legislation, which grants serving and former election commissioners immunity from civil or criminal proceedings for actions carried out in the discharge of their official duties. While this provision effectively shields the CEC from individual prosecution under current law, the provision itself remains subject to judicial review. If the SC finds that such blanket immunity is unconstitutional, Gyanesh Kumar is liable not only to being dismissed but to criminal prosecution for some of his manifestly mala fide decisions and actions.

But there remains the political problem: The BJP’s obdurate determination to cling to its positions, however unreasonable or unpopular, on the basis of a stubborn conviction that it has greater staying power than the fickle winds of public opinion. During an earlier controversy when the Opposition unitedly demanded the resignation of a cabinet minister, a BJP minister blithely told a press conference, “We are the NDA, not the UPA. We don’t give in.” The belligerent defence of the CEC and the SIR by BJP spokespeople, CMs and functionaries in recent days suggests that such an attitude is likely to be the BJP’s preferred path of resistance, rather than defusing the controversy by tossing an individual overboard. The BJP’s assertion seeks to explicitly contrast itself with what it portrays as Congress’s “weakness” or readiness to fold under media or Opposition pressure. By refusing to yield, the ruling dispensation signals that parliamentary disruptions, protests, and press conferences will not dictate executive decisions or resignations. There is no doubt that the CEC’s resignation would be claimed as a major victory by the Opposition, casting doubt over past electoral outcomes and creating significant uncertainty ahead of upcoming state elections. The BJP’s obduracy reassures party cadres and cabinet members that the central leadership will back them against external attacks rather than sacrificing them for short-term news cycles.

Yet the continued tenure of Gyanesh Kumar as CEC threatens to undermine the perceived neutrality of the ECI, without which the credibility of our electoral system stands diminished. Just a few years ago, the ECI was a model for the world, sought after by the UN and requested to advise a variety of developing countries and emerging democracies on how to construct their electoral systems and conduct effective elections. Today, the shambolic performance of an electoral authority that has deleted a global record 130 million voters from the rolls, and reduced one election booth to just one voter, has reduced India’s reputation as the world’s largest and most respected democracy to a farce.

With elections approaching, the authorities must support a pause in the disputed SIR, demand disclosure of the ECI’s decision-making record, and back an independent audit of deletions and software changes. Until these concerns are credibly addressed, every successive election will risk deepening the very crisis of democracy it is meant to resolve.

The writer is a fourth-term Congress MP from Thiruvananthapuram