There have been continuous protests for the last several weeks demanding the resignation of Chief Election Commissioner Gyanesh Kumar due to allegations of irregularities in the process of Special Intensive Revision or SIR of voter lists.
On Saturday, opposition MPs also passed an informal 'public impeachment' resolution against him.
Besides, the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Tenure) Act, 2023, enacted in the year 2023, is also surrounded by controversies.
Under this law made in December 2023, Gyanesh Kumar was appointed Election Commissioner in March 2024. Along with him, the current Election Commissioner Sukhbir Singh Sandhu was also made the Election Commissioner.
What is there in this law on which questions are constantly being raised? Why are legal experts talking about the need for its review?
If this law is declared unconstitutional and repealed, will it have any impact on the decisions taken in the last three years? Let us understand.
What did the Supreme Court say in Anoop Baranwal case?
In March 2023, the Supreme Court, in one of its decisions in the case of Anoop Baranwal vs. Government of India, had directed to form a selection committee for the appointment of the Chief Election Commissioner and Election Commissioners.
In this case, the five-judge Constitution bench of the Supreme Court had said that to ensure the independence of the Election Commission, it is necessary to keep the process of appointment of the Chief Election Commissioner and Election Commissioners free from the monopoly of the executive.
According to the court, the appointment process should be such that the institutional independence and impartiality of the Election Commission is maintained.
The Supreme Court had directed that until Parliament makes a law in this regard, the Chief Election Commissioner and Election Commissioners will be appointed on the recommendation of a committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India.
The court had made this arrangement in the absence of any law regarding the appointment process under Article 324 (2) of the Constitution.
This was an interim arrangement, which was to remain in force until Parliament made a law.
This change is the foundation of this entire controversy.
The petitioners say that due to the government having majority in the selection committee formed under the 2023 law, the executive continues to have influence in the appointment of election commissioners.
He argues that this is contrary to the spirit of the Supreme Court's decision given in the Anup Baranwal case and the constitutional principles established therein.
appointment of gyanesh kumar
In the year 2024, Gyanesh Kumar and Sukhbir Singh Sandhu were selected by a selection committee headed by the Prime Minister.
This committee included Prime Minister-nominated Union Minister Amit Shah and Leader of Opposition in the Lok Sabha Adhir Ranjan Choudhary.
After these appointments, Adhir Ranjan Chaudhary had said that he had registered his disagreement on them.
Under the law made in the year 2023, on 19 February 2025, Election Commissioner Gyanesh Kumar took over the charge of Chief Election Commissioner.
On the same day, the current Election Commissioner Vivek Joshi was also appointed as the Election Commissioner.
Gyanesh Kumar is the first Chief Election Commissioner to be appointed under the law of 2023.
Earlier, Election Commissioners and Chief Election Commissioners were appointed by the President on the recommendations of the Government.
Why the controversy over the 2023 law?
PDT Achari is a former Secretary General of the Lok Sabha and a well-known expert on constitutional matters.
BBC wanted to understand from him what is there in the law made in the year 2023, which is controversial.
PDT Achari says that there are two big problems in the law made in the year 2023.
First, the panel formed to select the CEC and election commissioners is already inclined in favor of the government.
Secondly, these officers have been given lifetime immunity from any civil or criminal case.
He says, "Even the President of India does not enjoy such lifelong immunity. The President enjoys immunity from criminal and civil cases only as long as he holds office."
"Any person can take legal action against him after he leaves office. Now the question is whether an officer appointed by the President can enjoy lifelong immunity when the President himself, who is the appointing authority, does not enjoy such immunity?"
According to Achari, this is a question which the Supreme Court should consider.
He says, "If this provision is accepted, it will mean that the Election Commission can work arbitrarily and no one can do anything against it."
Continuing his point, PDT Achari says that only the Supreme Court can cancel the 2023 law by declaring it unconstitutional.
He says, "The court may say that this law is against the Constitution and the principles of law, especially in relation to the provision that provides immunity."
"Also, the process of appointment of election commissioners should also be more fair and transparent. In my opinion this law should be repealed, especially these two provisions."
Can CEC Gyanesh Kumar be removed from the post?
BBC asked PDT Achari whether CEC Gyanesh Kumar can be removed from his post through impeachment or impeachment?
He said, "Look, at the moment I don't think so. Yes, if he resigns himself, then it would be a different matter."
"But as far as impeachment is concerned, the problem lies with the Judges Inquiry Act. This also applies to the Chief Election Commissioner, because the Chief Election Commissioner can be removed through the same process as a judge."
What is the process of impeachment?
Achari says that under the Judges Inquiry Act, the process of impeachment passes through several stages.
First of all, a motion is brought against the Chief Election Commissioner, in which details of the allegations against him are given to prove his misconduct.
In this proposal, related incidents, examples and evidence have to be presented.
He says, "After this the matter goes to the Speaker of the Lok Sabha or the Chairman of the Rajya Sabha. They consider it. If they want, they can also take legal opinion and decide whether to accept or reject the proposal."
"At least 100 members of the Lok Sabha or at least 50 members of the Rajya Sabha sign and give notice. This motion can be rejected by the Speaker of the Lok Sabha or the Chairman of the Rajya Sabha at the initial stage itself."
Continuing, Achari says, "Now it is up to the Speaker to consider the matter himself or seek the opinion of a legal expert."
"If the Speaker considers that he has adequately considered the matter or has obtained legal opinion, then the matter ends there."
The opposition has tried twice to initiate action to remove Gyanesh Kumar from the post.
During the first attempt, the notices given for impeachment were rejected by both the Lok Sabha and the Rajya Sabha in April.
The notices given in the second attempt are still pending in the Rajya Sabha. The opposition had accused Kumar of adopting a biased attitude.
According to PDT Achari, if the impeachment motion is not accepted by the Speaker of the Lok Sabha or the Chairman of the Rajya Sabha, then the MP who made the motion can challenge this decision in the court.
He says, "They can challenge this decision in court, because it has been treated as an executive order or administrative action of the Speaker."
"Here the Speaker is not acting as the Speaker of the House, but is playing the role of a kind of tribunal. Therefore, his decision can be challenged in the court."
"This is the only relief. I don't know whether the MPs who gave notice of this motion last time challenged the Speaker's decision in court or not. To the best of my knowledge, they did not do so."
No decision yet on challenge to 2023 law
The petition challenging the constitutional validity of the 2023 Act has been pending before the Supreme Court for more than two and a half years.
Questions are also being raised regarding the delay in disposal of such an important matter related to the structure and independence of the Election Commission.
Justice Sanjay Kishan Kaul was a judge in the Supreme Court from February 2017 to December 2023.
He says, "These petitions were filed within a few days of the law coming into force in January 2024."
"A stay to March 21, 2024, was refused on the grounds that doing so on the eve of general elections could create disorder."
"Subsequently the matter continued to be listed and adjourned several times during 2025, including to 19 February 2025, the date when the current Chief Election Commissioner assumed charge."
"The hearing of the case continued from May 6, 2026 to July 30, 2026."
Different opinions of two Supreme Court judges
On September 23, 2026, a two-judge bench of the Supreme Court gave different opinions in this matter.
Justice Dipankar Dutta said that in the Anup Baranwal case, the Supreme Court has already laid down the constitutional principles regarding the appointment process.
Therefore, in the present case it only has to be seen whether the law of 2023 is in accordance with that decision or not. There is no need for a big back for this.
At the same time, Justice Satish Chandra Sharma considered it an important constitutional question and supported sending it to a constitution bench of five judges.
After differences of opinion between the two judges, the matter was referred to the Chief Justice of India so that he could decide on the formation of an appropriate Constitution Bench.
This is likely to cause further delay in the final disposal of the case.
Justice Kaul says that under the disputed Act, three Election Commissioners have been appointed and one of them has been made the Chief Election Commissioner i.e. CEC.
He says, "The Election Commission thus constituted has conducted the process of 2024 Lok Sabha elections, various assembly elections held thereafter and the process of nationwide special intensive revision."
"With each passing month, the cost of declaring appointments illegal increases and the scope of practical relief available to the court narrows."
"This creates the risk that by the time a decision is made, a situation has already been created that will be almost impossible to reverse."
According to Justice Kaul, as long as this dispute remains unresolved, every decision of the Election Commission will remain a question mark at some level or the other.
According to him, from the point of view of fairness, this situation is not fair for the current Chief Election Commissioner and other commissioners also.
He says, "Since the current CEC will remain in office till January 2029 and elections are to be held in many states in the beginning of 2027, in my opinion the Constitution Bench should hear the matter continuously and give its decision before the next big election round."
What part of the 2023 law has been challenged?
Justice Abhay Srinivas Oak was a judge in the Supreme Court from August 2021 to May 2025.
He says, "It is important to understand its background. A few years ago, a five-judge Constitution bench of the Supreme Court had given its verdict on Anup Baranwal's petition."
"The court had said that the appointment process of the Chief Election Commissioner should be kept as separate and protected as possible from the influence of the executive, i.e. the government or the administration."
Continuing his point, Justice Oak says, "At that time no law existed on this subject."
"Article 142 of the Constitution gives the Supreme Court the power to issue necessary directions where there is no provision in the law on any subject, until the Parliament makes a law in this regard."
"On this basis, the Supreme Court had directed that a committee should be formed for the appointment of election commissioners, which would include the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India."
"But a different arrangement was made in the law made in 2023. Under this, the Prime Minister, the Leader of the Opposition and a Union Minister nominated by the Prime Minister were included in the Appointment Committee. This is the reason why this law has been challenged in the Supreme Court."
Justice Oak says that in its earlier decision in the Anoop Baranwal case, the Supreme Court had said that the process of appointment of election commissioners should be kept free from the influence of people in power.
He says that the court believed that the government or the executive should not have complete control over the appointment process.
If this happens, then only those people will be able to become election commissioners, whom the ruling party wants to elect.
Justice Oak says, "But under the 2023 law, the Union Minister nominated by the Prime Minister will never go against the Prime Minister. Therefore, the influence of the executive remains."
"It has been argued in the petition that this law is unconstitutional, because it is contrary to the earlier decision of the Supreme Court."
Does the 2023 law need to be reviewed?
After the recent controversies related to the Election Commission and Chief Election Commissioner Gyanesh Kumar, questions are being raised again on the 2023 law.
In such a situation, the question is whether this law should be reviewed again, whether by the court or the Parliament?
Justice Sanjay Kishan Kaul says, "Justice Dutta is right in his opinion that no party that has been in power for many decades has shown any willingness to hand over its electoral fortunes to a truly independent and impartial institution."
“I think the 2023 law maintains that position.”
According to him, Parliament also did not include important reforms suggested in the Anoop Baranwal case, which included giving equal protection to Election Commissioners as the Chief Election Commissioner and setting up an independent secretariat for the Election Commission.
He says, "Such a legislature, whose majority benefits from the structure of this law, becomes, in the language of law, the judge of its own case."
The question is also that if this law is reviewed, then which of its provisions should be scrutinized the most.
Justice Kaul says that the court should deeply examine Section 7, Section 6 and Section 8(2) of the law related to the appointment process of the Chief Election Commissioner and Election Commissioners.
He says, "These provisions should be tested on the criteria of Article 14 and Article 324 of the Constitution."
"There is no doubt that free and fair elections are one of the basic features of the Constitution, as held by both Justice Dutta and Justice Sharma."
"In my opinion, the solution could be to include an impartial third member in the selection committee or make the unanimity of all members mandatory for the committee's decisions."
What is the provision in Section 16?
Section 16 of the 2023 Act provides comprehensive legal protection to the Chief Election Commissioner and Election Commissioners.
According to this section, neither a new civil or criminal case can be filed against him in the court nor any existing action can be continued against him for any act, decision or statement made in the course of his official duties.
Justice Kaul says that Section 16 also presents a problem.
He says, "It should be interpreted in such a way that it applies only to those actions which are done in good faith i.e. good faith."
What will happen if the 2023 law is repealed?
According to Justice Sanjay Kishan Kaul, it will depend on which part of the law is declared unconstitutional.
He says, "The Anup Baranwal committee comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India was directed to continue working until the Parliament makes a law on the subject."
"The court can reinstate that committee under Article 142."
Justice Oak says that according to the legal principle, any law made by the legislature is considered valid until a court cancels or bans it.
