On 13 January, the Supreme Court agreed to examine the constitutional validity of a provision in the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
The petition was filed by Lok Prahari, an NGO, and challenged Section 16 of the Act.
The section prohibits courts from entertaining or proceeding with any civil or criminal proceedings against a person who was, or is the chief election commissioner or an election commissioner in relation to any act, word, or decision made in the performance of official duties. The petition argued that the provision provides a blanket and life-long immunity that extends even after the person leaves office, and thus, is unconstitutional.
Also Read: Chamkila’s murder highlights paternalistic nature of society that sees censorship as protection
Immunity without limits
Section 16 of the 2023 Act provides: Notwithstanding anything contained in any other law for the time being in force, no court shall entertain or continue any civil or criminal proceedings against any person who is or was a Chief Election Commissioner or an Election Commissioner for any act, thing or word, committed, done or spoken by him when, or in the course of acting or purporting to act in the discharge of his official duty or function.
The petitioner argued that this statutory safeguard is unprecedented in constitutional law, as it permanently shields Election Commissioners against legal responsibility without offering any mala fide conduct, corruption, and power abuse exception.
Such an absolute bar on judicial scrutiny undermines the rule of law and places Election Commissioners above the legal framework applicable to other constitutional authorities, the petitioner submitted.
What Constitution actually provides
Article 324 of the Constitution governs the constitutional position of the Election Commission of India. Article 324(2) gives the President the power to appoint the Chief Election Commissioner and the other election commissioners.
Article 324(5) also gives Parliament the authority to fix the terms of service of the CEC and ECs and provides that the CEC shall not be removed except in the manner as a judge of the Supreme Court.
While the Constitution provides strong safeguards to ensure the independence of the Election Commission, it does not specifically grant immunity to election ‘commissioners, either temporary or permanent, for their action during the term of office’.
‘Equality before law at stake’
Provisions of Section 16 also run counter to Article 14 of the Constitution, which guarantees equality before law. Even constitutional judges, who perform adjudicatory functions, do not enjoy life-long immunity from prosecution.
They are protected by judicial immunity, but they can be prosecuted with prior sanction, including permission of the Chief Justice of India.
Article 361 of the Constitution grants the President and Governors an absolute immunity only in the course of their term, and not beyond. Statutory immunity is not blanket immunity to members of constitutional bodies like the Comptroller and Auditor General or the Union Public Service Commission.
The Central Vigilance Commission Act only protects actions that were made in good faith. Public servants and ministers are subject to prosecution with prior government sanction under Section 218 of the Bharatiya Nagarik Suraksha Sanhita, subject to a prescribed time limit.
Members of Parliament and state legislatures enjoy privilege-based immunity under Articles 105 and 194, while judges are protected by judicial immunity with procedural safeguards.
It is on this basis that the permanent bar that has been established by the Section 16 for Election Commissioners is argued to be disproportionate and constitutionally excessive.
Independence not impunity
The stakes are especially high because of the Election Commission’s sweeping powers. It plays a decisive role in controlling the electoral process, including enforcement of the Model Code of Conduct, announcing election schedule, and recognising political parties.
Protecting the Commission’s members from any form of post-tenure legal scrutiny disrupts the level playing field and gives Election Commissioners unchecked discretion to act for or against political parties or candidates without fear of accountability.
Larger context of electoral reforms
The enactment of the 2023 law must be viewed against the backdrop of judicial intervention in the appointment process of Election Commissioners. On 17 May 2021, the Association for Democratic Reforms approached the Supreme Court challenging the executive-dominated appointment mechanism, undermining the autonomy of the Election Commission.
On 2 March 2023, a five-judge Constitution Bench, in the Anoop Baranwal v. Union of India (2023), held that the independence of the Election Commission is essential for free and fair elections, and directed that appointments be made on the advice of a committee comprising the prime minister, the Leader of Opposition, and the Chief Justice of India.
The court made it clear that this arrangement would go on till Parliament passed a law on the matter.
In December 2023, Parliament passed the Chief Election Commissioner and Other Election Commissioners Act, 2023, removing the Chief Justice of India from the Selection Committee, replacing the position with a Union cabinet minister.
This legislative action created new problems. On 6 January 2024, ADR filed a new petition questioning the constitutional validity of the 2023 Act. Multiple petitions challenging the appointment mechanism remain pending before the Supreme Court.
Test for constitutional democracy
The challenge to Section 16 of the 2023 act raises issues that go beyond the personal protection of Election Commissioners. It raises constitutional questions of the boundaries of the parliamentary power under Article 324, the relationship between institutional independence and accountability, and the possibility of positioning constitutional functionalities outside the law.
The Supreme Court’s decision on the validity of the immunity provision is expected to have a significant impact on the constitutional governance, the rule of law and equality, as well as the integrity of the Indian electoral democracy.
The matter is currently pending consideration before the Supreme Court.
Gaurav Kumar Mandal is a student of National University of Study and Research in Law, Ranchi. Views are personal.
Also Read: Safety or stigma? How constitutional the blood donation ban on gay men, sex workers, trans people is