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New Delhi: Rajya Sabha Chairman and Vice-President C.P. Radhakrishnan while rejecting the notice to move a motion of impeachment against Chief Election Commissioner Gyanesh Kumar has said that the opposition notice signed by 63 MPs in the Upper House lacked “proofs necessary to constitute misbehaviour”. The order says that the charges levelled by the opposition are “relevant for political debate” but “do not prima facie meet the high constitutional bar for removal proceedings.” It also said that removal proceedings cannot be founded on “vague and subjective apprehensions or perceived political outcomes.”

The opposition in its two separate notices moved in the Lok Sabha and Rajya Sabha on March 12 had accused Kumar of “misbehaviour” and listed seven charges. On April 6, both notices were rejected. The notice in the Rajya Sabha was signed by 63 MPs while the one in the Lok Sabha was signed by 130 MPs. The notices, moved separately in both Houses, were rejected, and no reason was provided in the bulletins published on April 6.

‘Political perceptions would jeopardize its very independence’

The order now seen by The Wire provides reasons to the charges levelled by the opposition. The 17-page order by the Chairman’s office dated April 6, states that removal motions “based on administrative disagreements or political perceptions would jeopardise” the very independence of the Election Commission that the Constitution aims to safeguard.

“By their very nature, its (Election Commission) decisions are bound to carry political consequences, irrespective of the course adopted. In view of this unique constitutional role, any proposal for the removal of the Chief Election Commissioner must be examined with utmost care and circumspection, striking a careful balance between preserving the institutional independence of the Commission and the right of Members to initiate a Motion,” the order said.

“Such a Motion can be admitted only where there exists credible material disclosing a prima facie case. Admitting removal motions based on administrative disagreements or political perceptions would jeopardize its very independence the Constitution aims to safeguard.”

‘High bar’ for removal

Radhakrishnan in his order said that the allegations levelled by the opposition “lack proofs necessary to constitute misbehaviour which establishes a prima facie case for [the] removal of [the] Chief Election Commissioner.” He said that while some charges involve matters that are already decided or are under judicial review. While they can be relevant to “political debate” they do not meet the “high bar” for removal proceedings.

“Some charges involve matters already decided or currently under judicial review. While these allegations are relevant for political debate, they do not prima facie meet the high constitutional bar for removal proceedings…In view thereof, the notice does not demonstrate “misbehaviour” as envisaged by Articles 324(5) and 124(4) of the Constitution. Therefore, the prima-facie requirements for admitting this notice of Motion under the Judges (Inquiry) Act, 1968, have not been met,” the order said.

The order added that the Constitution entrusts parliament with an extraordinary power to initiate proceedings for removal of a person holding a high constitutional office and this power “must be exercised with the highest degree of caution, restraint, and objectivity.”

“It is not meant for routine or subjective invocation, but only for those rare and compelling situations where misbehaviour or incapacity is clearly prima facie visible,” it said.

Also read: We the People vs the Election Commission of India

‘Do not amount to any act of misbehavior…’

The opposition in its notice had alleged that the process of appointment of the CEC was compromised as the selection process under the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, is pending consideration before the Supreme Court. The opposition also pointed to leader of opposition Rahul Gandhi dissenting the recommendation of appointment of Kumar as he had served in “served in senior positions in the Government which reveals his “deep institutional embeddedness within the Executive.”

“These allegations, even if presumed to be factually correct, do not amount to any act of misbehavior attributable to the Chief Election Commissioner,” the Chairman’s order said. 

“Further, despite the Act under challenge, the Supreme Court has not provided any interim relief or stayed the application of any provision of the Act.”

It also said that “prior service in Government, by itself, cannot be construed as indicative of bias.” 

“It is an undisputed fact that the overwhelming majority of Chief Election Commissioners since 1950s have served in Government before their appointment as CEC, and such experience has never been treated as a ground for presuming partiality,” it said.

The opposition referred to Kumar’s press conference last August in response to the allegations of electoral fraud in Karnataka’s Mahadevapura assembly  in the 2024 Lok Sabha elections and demanded an apology from the leader of opposition within seven days or “apologise to the nation” and called the ultimatum “unbecoming of the office” amounting to “intimidation of parliamentary opposition.” The opposition had also referred to allegations made by BJP MP Anurag Thakur on electoral irregularities in other constituencies like Rae Bareli and Wayanad, to which Kumar had said that the poll body is giving a “graded response.”

The Rajya Sabha chairman in his order said “differences of opinion” on the appropriateness of responses, “in the absence of clear and demonstrable evidence of abuse of authority or unlawful conduct, cannot amount to misbehaviour so as to warrant his removal.”

“The allegations, on their face do not appear to be falling within the meaning of ‘misbehaviour’ for which a constitutional functionary can be subjected to the process of his removal,” the order said.

While the opposition had alleged that the Election Commission had refused to provide machine readable voter lists, Radhakrishnan’s order said that the issue was considered by the Supreme Court in Kamal Nath Vs. Election Commission of India, following which the poll body had acted in accordance with the apex court’s order.

“Accordingly, any action taken in faithful compliance with judicial directions, while carefully balancing constitutional obligations with competing demands from political stakeholders, cannot, by any reasonable standard, be construed as ‘misbehaviour’,” the order said.

Also read: CEC Gyanesh Kumar Has Formal Power But Has Lost Moral Authority, Which is Constitutional Sacrilege

The opposition had also alleged that the SIR process in Bihar included various changes including allowing the use of Aadhaar as identity proof after the Supreme Court’s intervention, and conducting the exercise in a short duration, the Chairman’s order said that the SIR is presently being challenged in the Supreme Court.

“The notice itself indicates that the matter presently remains sub judice, with the Supreme Court yet to render its final determination. Any attempt to draw adverse conclusions or attribute misconduct at this stage would amount to a premature and unwarranted pre-emption of the judicial process,” the order said.

In response to how the nationwide SIR is being conducted, including the deaths of BLOs during the exercise, the order said that the Election Commission is mandated to undertake revision of electoral rolls.

“Mere fact that discharge of such constitutionally ordained functions are perceived as disadvantageous to a particular political spectrum is at most a matter of subjective opinion and cannot, in itself, furnish a valid ground for alleging misconduct,” the order said.

It further said removal proceedings cannot be “founded on vague and subjective apprehensions or perceived political outcomes, but must rest on clear, specific, and sustainable grounds.”

While the opposition alleged that the Election Commission had on on multiple occasions failed to comply with directions issued by the Supreme Court in the course of proceedings relating to electoral roll revisions, Radhakrishnan’s order said that the Supreme Court is seized of matters related to SIR.

“It is well settled that, in judicial proceedings, particularly those involving the constitutional rights of citizens to be included in electoral rolls, the Court may issue interim directions which are binding on all concerned parties. Any alleged deviation from such directions is appropriately addressed through the Court’s established contempt jurisdiction. In this backdrop, the present charge fails to disclose any prima facie case of ‘misbehaviour’,” the order said.

On the charge that Gyanesh Kumar had failed to maintain independence as the CEC, the Rajya Sabha chairperson said that the charge “appears to be couched in broad, generalized, and inferential terms, lacking any specificity and resting largely on the perception of a particular political formation”.

“It is a settled principle that generalized allegations of institutional bias cannot substitute for clearly articulated and specific instances of misconduct. In the absence of concrete particulars or substantiated evidence demonstrating deviation from constitutional or statutory obligations, such assertions fails in the test of prima facie instance of ‘misbehaviour’,” the order said.

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