Article 324(5) is a crucial provision within the Constitution of India that establishes the safeguards for the independence of the Election Commission of India (ECI). It is a constitutional provision, part of Part XV of the Constitution, which deals with elections.
The article originated from the framers' intent to centralize the election machinery and ensure free and fair elections by vesting the superintendence, direction, and control of elections in an independent body. Draft Article 289, which became Article 324, was discussed in June 1949.
The provision works by governing the conditions of service and tenure of the Election Commissioners and Regional Commissioners, which are determined by the President by rule, subject to any law made by Parliament. Its key mechanism for independence is the two provisos:
- The Chief Election Commissioner (CEC) cannot be removed from office except in the like manner and on the like grounds as a Judge of the Supreme Court. This removal process requires a resolution passed by both Houses of Parliament on the grounds of proved misbehaviour or incapacity. Furthermore, the CEC's conditions of service cannot be varied to their disadvantage after appointment.
- Any other Election Commissioner (EC) or a Regional Commissioner cannot be removed from office except on the recommendation of the Chief Election Commissioner.
This provision connects directly to the ECI and the removal process for Supreme Court Judges under Article 124(4). The distinction in removal protection between the CEC and the other ECs, which became a permanent multi-member body in 1993, has been a point of debate regarding the equal status of all Commissioners.
The provision itself has not been amended, but Parliament recently enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which replaced the 1991 Act. This new Act, which came into force on January 2, 2024, retains the constitutional removal process under Article 324(5), meaning the CEC still has the higher protection, and the ECs can still be removed on the CEC's recommendation. However, the 2023 Act changed the conditions of service by pegging the salary of the CEC and ECs to that of the Cabinet Secretary, a departure from the previous link to a Supreme Court Judge's salary.