The summary rejection of the CEC removal notice by the Speaker and the Chairman—absent a reasoned explanation—marks a significant departure from the principles of natural justice. As "speaking orders" are foundational to the rule of law, presiding officers, when acting in an adjudicatory capacity, are bound by judicial precedents like Kihoto Hollohan to ensure transparency over institutional silence.
The recent rejection of a removal notice against Chief Election Commissioner (CEC) Gyanesh Kumar by the Rajya Sabha Chairman and the Lok Sabha Speaker marks a watershed moment in India's parliamentary and administrative history. On March 12, 2026, a formidable cohort of 193 Opposition MPs—comprising 63 from the Upper House and 130 from the Lower House—submitted a detailed 10-page indictment. The charges were grave: alleged "subservience" to the executive, "deliberate abuse of power," and the "targeted disenfranchisement" of voters through manipulated electoral rolls.
Yet, the response from the custodians of our Parliament was a master-class in brevity. Through bulletins issued by the Secretaries-General, the nation was informed that after a “careful and objective assessment,” the notices were rejected. No specific reasons were cited. In the vacuum of this silence, a fundamental constitutional question emerges: Can the discretionary power of a Presiding Officer override the foundational principle of Natural Justice that demands a "speaking order"? In Union of India v. Tulshiram Patel, the Supreme Court established that Article 14 of the Constitution inherently guarantees the right to natural justice. This was further expanded in AK Kraipak v. Union of India, where the Court confirmed that natural justice—specifically the rule against bias—applies to administrative processes. Crucially, these judicial mandates extend to the presiding officers of legislatures when exercising their administrative and quasi- judicial functions.
The anatomy of a speaking order
The dictum of Kihoto Hollohan v. Zachillhu (1992) is fundamentally applicable to the CEC removal case because it establishes that whenever a Speaker or Chairman performs a "gatekeeping" or adjudicatory function mandated by statute, they act as a quasi-judicial Tribunal rather than a purely political officer. While the Kihoto case specifically addressed the Anti-Defection Law, its "Tribunal Test" confirms that the Chair's decisions are subject to judicial review if they violate the principles of natural justice, act with mala fides, or are perversely arbitrary.
Although Section 3 of the Judges (Inquiry) Act employs the discretionary 'may,' the Supreme Court's ruling in M. Krishna Swami v. Union of India (1992) cements the principle that such power is not absolute; rather, it is a statutory obligation that must be discharged with 'awed neutrality' to preserve the delicate balance of constitutional independence. Therefore, rejecting a substantial notice signed by 193 MPs without a "speaking order" arguably fails the Kihoto standard, as it prevents the transparency and "application of mind" necessary to maintain the constitutional shield of Article 122 and ensure the independence of a high constitutional office.
In the realm of administrative law, a "speaking order" is an order that, quite literally, "speaks for itself." It is an order that contains the internal logic, the findings of fact, and the legal reasoning that led to a specific conclusion. As Justice C.K. Thakker eloquently notes in his treatise on Administrative Law, a speaking order is the "third pillar" of natural justice, standing alongside the right to a fair hearing (Audi Alteram Partem) and the rule against bias (Nemo Judex in Causa Sua).
A valid speaking order must bridge the gap between the evidence presented and the decision reached. It serves as a safeguard against the "subjective satisfaction" of an official, ensuring instead that decisions are rooted in an "objective basis." When an authority—even one as high as the Speaker— exercises a statutory power that affects the rights of others or the functioning of a constitutional body, the requirement to provide reasons is not a mere formality; it is a mandate of the Rule of Law.
The gatekeeper's discretion
The Presiding Officers in this instance invoked Section 3 of the Judges (Inquiry) Act, 1968. This statute provides the procedural framework for the removal of Supreme Court Judges and, by extension via Article 324(5), the Chief Election Commissioner. Section 3(1) stipulates that the Speaker or Chairman "may, after consulting such persons... and after considering such materials... either admit the motion or refuse to admit the same."
While the statutory use of 'may' implies a veneer of discretion, the Supreme Court in M. Krishna Swami v. Union of India (1992) clarified that such power is never absolute; it is a statutory duty that must be exercised within the bounds of constitutional reasonableness and awed neutrality. In Administrative Law, Wade and Forsyth emphasize that a "speaking order" is the only mechanism that allows for meaningful judicial review. Without reasons, an order becomes an "impenetrable wall." If the 193 MPs provided a 10-page document of allegations, the "materials available" were substantial. To reject them without addressing the points raised creates a "non-speaking" or "mute" order, which historically has been the primary target of the Writ of Certiorari.
Bagehot's ideal speaker
To understand the weight of this silence, one must look to Walter Bagehot's classic analysis in The English Constitution. Bagehot viewed the Speaker as the anchor of the "dignified" part of the constitution—the element that inspires national trust. He argued that the Speaker must possess an "awed neutrality," removed entirely from party strife.
The Speaker's role, according to Bagehot, is to act as a moderator who ensures that the "efficient" part of the government (the Executive) does not steamroll the minority. When a Speaker rejects a notice signed by nearly two hundred representatives of the people without explaining why, the "dignity" of the office is compromised. Instead of appearing as an impartial arbiter of parliamentary rules, the Chair risks being perceived as a shield for the Executive. In a "government by discussion," as Bagehot championed, silence is the ultimate conversation-stopper.
The high stakes of CEC neutrality
The office of the CEC is not a mere administrative post; it is the heartbeat of Indian democracy. The Constitution provides the CEC with the same protection as a Supreme Court Judge precisely to prevent "executive interference." The allegations leveled by the Opposition—ranging from "partisan conduct" to "obstruction of justice"—touch upon the very core of electoral integrity.
By refusing to admit the motion, the Presiding Officers prevented the activation of Section 3(2) of the Act, which requires the formation of an Investigation Committee. This committee, comprising a Supreme Court Judge, a High Court Chief Justice, and a distinguished jurist, is the proper forum for testing the "proved misbehaviour" of a vital constitutional functionary.
When the "gatekeepers" (the Speaker and Chairman) close the door without a speaking order, they effectively pre-empt a judicial inquiry. This is where the lack of reasons becomes most damaging. If the allegations were frivolous or lacked a prima facie basis, a speaking order could have articulated that insufficiency, thereby vindicating the CEC and upholding the dignity of the House. Silence, conversely, allows the "clouds of suspicion" to linger, as the public is left to wonder if the rejection was based on law or loyalty.
Silence is not always gold
The Indian judiciary has been consistent in its demand for reasoned orders. In S.N. Mukherjee v. Union of India (1990), the Supreme Court held that "reasons are the links between the materials on which certain conclusions are based and the actual conclusions." This "link" is what excludes arbitrariness. Under Article 14 of the Constitution, any state action that is arbitrary is unconstitutional.
As Justice Thakker points out, a non-speaking order is a "rubber stamp" that fails to demonstrate the "application of mind." In the context of the CEC, the "mind" of the Speaker and Chairman must be seen to be applied to the 10 pages of grievances. By failing to provide a speaking order, the authorities have potentially created a precedent where serious constitutional challenges can be dismissed via a "Secretary-General's bulletin"—a medium that lacks the gravitas and accountability required for such a momentous decision.
The principle of a speaking order is not a technicality of administrative law; it is a fundamental requirement of democratic accountability. As Wade and Forsyth noted, the "tide is flowing strongly in favor of a general duty to give reasons." For the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha, this duty is even more pronounced. They are the guardians of the "spirit of the House."
For justice to be seen to be done, the high offices of our Parliament must speak. A "careful and objective assessment" that remains hidden behind a wall of silence does little to inspire confidence in a polarized era. Whether the allegations against the CEC were valid or not is a matter for an Inquiry Committee; but the right of the Parliament—and the people—to know the grounds for a rejection is a matter of constitutional right. A Parliament that does not explain its decisions to its own members is a Parliament that risks losing its "dignified" status.
Author Faisal CK is Deputy Law Secretary to the Government of Kerala. Views are personal.