The Supreme Court on Tuesday sought responses from the Union government and the Election Commission of India (ECI) to a petition challenging the constitutional validity of a provision granting immunity to the Chief Election Commissioner (CEC) and Election Commissioners (ECs) from civil and criminal proceedings for acts performed in the purported discharge of their official duties.
A bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice V Mohana issued notice on the plea filed by the Association for Democratic Reforms (ADR). The petition challenges Section 16 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
Senior Advocate Gopal Sankaranarayanan appeared for ADR, while the petition was filed through advocate-on-record Rani Mishra.
The petitioner has sought a declaration that Section 16 is unconstitutional, void and inoperative for violating Articles 14 and 21 of the Constitution, as well as its basic structure. It has also sought the revival of proceedings against serving and former election commissioners that were brought to an end after the provision came into force.
What Section 16 of the CEC Act states
Section 16 of the 2023 Act provides protection against civil and criminal proceedings for actions taken by a person who is or was the CEC or an EC in the discharge, or purported discharge, of official duties.
The provision states: “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.”
ADR contends that the provision grants current and former election commissioners blanket immunity for life, without making the protection conditional on good faith or providing a mechanism for sanctions in cases of alleged wrongdoing.
According to the petition, the immunity places election commissioners beyond the reach of courts and has no rational connection with the stated objective of ensuring their independence.
“No other provision in the Constitution of India or any statute grants immunity that is at once lifelong, unconditioned by good faith, free of any sanction mechanism, and without a saving clause,” the petition states.
ADR questions the constitutional basis for blanket immunity
The petitioner argues that the protection afforded by Section 16 is unusually broad because it continues after an election commissioner leaves office and does not include conditions or exceptions of the kind ADR says are necessary to prevent misuse.
It further contends that no other constitutional functionary, including the President of India, state governors or judges, enjoys an equivalent form of immunity from legal proceedings after leaving office.
ADR has argued that the provision fails to establish an “intelligible differentia” that would justify treating the CEC and ECs differently from other constitutional functionaries and statutory authorities.
The petition also maintains that the Constitution had ensured the independent status of election commissioners between 1950 and 2023, making the additional protection unnecessary.
Relying on the Supreme Court's judgment in Subramanian Swamy v. CBI, ADR has argued that classification based on an officer's or public servant's status or position for the purposes of inquiry or investigation is impermissible under Article 14.
Petition raises concerns over passage of the provision in Parliament
ADR has also questioned the manner in which Section 16 was introduced and passed, arguing that the provision was not part of the original Bill.
According to the petition, the immunity clause was introduced for the first time as new Clause 15A through an official amendment circulated on December 11, 2023, and disclosed to the Rajya Sabha on December 12.
The petitioner states that the provision received no debate in the Rajya Sabha and that the only recorded justification was that it would enable the CEC and ECs to discharge their functions independently. On the same day, motions seeking referral of the Bill to a Select Committee were rejected, and the Bill was passed.
ADR further states that in the Lok Sabha on December 21, 2023, the sole objection raised against the immunity provision went unanswered. Members supporting the Bill, it claims, described the protection as being confined to the period during which an election commissioner held office.
The petition also points out that the Bill was passed without amendment, despite the provision having been introduced separately. It argues that the passage of the legislation was procedurally improper because a substantial number of Opposition MPs were under suspension at the time.
Supreme Court to hear plea alongside Lok Prahari challenge
A similar petition filed by the non-governmental organisation Lok Prahari, challenging the blanket immunity granted to the CEC and Election Commissioners, is already pending before the Supreme Court.
The bench has directed that ADR's petition be tagged with the pending Lok Prahari case, allowing the related challenges to be considered together.
The Supreme Court's notice seeks responses from the Union government and the Election Commission on ADR's challenge. The constitutional validity of Section 16, and the petitioner's request to revive proceedings that ended after the provision came into force, remain matters for the court to consider.