The Supreme Court on Wednesday sought responses from the Centre and the Election Commission of India (ECI) on a petition challenging the constitutional validity of a provision granting blanket legal immunity to the Chief Election Commissioner (CEC) and other Election Commissioners for actions performed in their official capacity.
A three-judge Bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana issued notices on a petition filed by activist-lawyer Arun Kumar Agrawal, challenging Section 16 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
The provision bars courts from entertaining or continuing civil or criminal proceedings against serving or former election commissioners for acts performed, or purportedly performed, in the discharge of their official duties.
The petitioner has argued that the immunity is excessive and unconstitutional because it contains no exception even for actions allegedly undertaken without good faith or beyond the scope of official authority.
๐ฃ๐น๐ฒ๐ฎ ๐พ๐๐ฒ๐๐๐ถ๐ผ๐ป๐ ๐๐๐ฒ๐ฒ๐ฝ๐ถ๐ป๐ด ๐น๐ฒ๐ด๐ฎ๐น ๐ฝ๐ฟ๐ผ๐๐ฒ๐ฐ๐๐ถ๐ผ๐ป
Agrawal contended that the protection granted under Section 16 goes beyond what is necessary to safeguard the independence of the Election Commission.
The petition argued that similar protections available to other constitutional functionaries generally apply to actions performed or intended to be performed in good faith, whereas the contested provision does not incorporate such a qualification.
"Independence of the Election Commission does not mean that its members should be free from legal accountability," the plea stated.
It maintained that protecting election commissioners from frivolous litigation was a legitimate objective but could be achieved through less restrictive measures, including safeguards against vexatious complaints and prior judicial scrutiny.
The petitioner also pointed out that the Election Commission had successfully conducted elections for several decades without such comprehensive immunity.
According to the plea, this demonstrated that the institution could function independently without completely barring legal proceedings against its members.
๐ฉ๐ผ๐๐ฒ๐ฟ๐ ๐ฐ๐ผ๐๐น๐ฑ ๐น๐ผ๐๐ฒ ๐น๐ฒ๐ด๐ฎ๐น ๐ฟ๐ฒ๐ฐ๐ผ๐๐ฟ๐๐ฒ
The petition argued that the provision could deprive voters, candidates and other citizens of legal remedies in cases involving alleged misconduct by election commissioners.
It cited hypothetical situations involving the wrongful deletion of a voter's name from electoral rolls, actions taken with malicious intent against election candidates and allegations of corruption in the functioning of the poll body.
Agrawal contended that the law effectively prevents affected individuals from pursuing civil or criminal remedies against commissioners for actions covered by the immunity provision.
The plea maintained that institutional independence and legal accountability were not mutually exclusive and that the protection of constitutional authorities should not extend to alleged wrongdoing undertaken without good faith.
๐ฃ๐ฒ๐๐ถ๐๐ถ๐ผ๐ป ๐ณ๐น๐ฎ๐ด๐ ๐ฝ๐ฎ๐ฟ๐น๐ถ๐ฎ๐บ๐ฒ๐ป๐๐ฎ๐ฟ๐ ๐ฝ๐ฟ๐ผ๐ฐ๐ฒ๐๐
The petitioner also questioned the circumstances under which the immunity provision was incorporated into the 2023 legislation.
According to the plea, the original Bill introduced in Parliament did not contain a clause granting blanket immunity to the CEC and Election Commissioners.
The provision was subsequently introduced through an amendment, allegedly without adequate justification explaining why such extensive legal protection was necessary.
The petition argued that the explanation offered by the government during parliamentary discussions did not establish that the provision was essential for the independent functioning of the Election Commission.
It further pointed out that the amended legislation was passed when several Opposition MPs were under suspension.
The petitioner maintained that the absence of a demonstrated necessity for the provision raised questions about its proportionality and constitutional validity.
๐ฆ๐๐ฅ ๐ฒ๐ ๐ฒ๐ฟ๐ฐ๐ถ๐๐ฒ ๐ฎ๐น๐๐ผ ๐ฐ๐ถ๐๐ฒ๐ฑ
The petition referred to concerns surrounding the ongoing Special Intensive Revision (SIR) of electoral rolls, arguing that the exercise had brought questions of accountability within the Election Commission into sharper focus.
It cited media reports concerning alleged objections raised by two Election Commissioners to aspects of the revision exercise and questions about the integrity of software used in the process.
The plea also referred to allegations concerning incumbent CEC Gyanesh Kumar's conduct during his earlier tenure as Secretary of the Public Works Department in Kerala.
These allegations were cited by the petitioner to question whether legal immunity should extend to actions allegedly undertaken without good faith. The allegations have not been established by the court.
๐๐ฎ๐ฟ๐น๐ถ๐ฒ๐ฟ ๐ฐ๐ต๐ฎ๐น๐น๐ฒ๐ป๐ด๐ฒ๐ ๐ฝ๐ฒ๐ป๐ฑ๐ถ๐ป๐ด
The latest petition adds to earlier legal challenges against Section 16 of the 2023 Act.
In January, the Supreme Court issued notices to the Centre and the ECI on a petition filed by the NGO Lok Prahari challenging the provision, but declined to stay its operation.
On October 13, the court also issued notice on a petition filed by the Association for Democratic Reforms (ADR) and tagged it with the pending matter.
The latest petition seeks a declaration that Section 16 is unconstitutional and should be struck down.
Advocate Neha Rathi appeared for the petitioner.
The Supreme Court has sought responses from the Centre and the Election Commission but has not yet ruled on the constitutional validity of the immunity provision.