The Supreme Court has agreed to examine the validity of a provision in the Chief Election Commissioner (CEC) and Other Election Commissioners (ECs) (Appointment, Conditions of Service and Term of Office) Act, 2023, which grants lifelong immunity from prosecution to the CEC and ECs for actions taken in their official capacity. A bench led by Chief Justice of India Surya Kant issued a notice to the Union government and the Election Commission of India (ECI), seeking their responses to a Public Interest Litigation (PIL) challenging the legality of this immunity clause. The court indicated that the matter warranted deeper judicial scrutiny.
The PIL, filed by Lok Prahari, an NGO, challenges Section 16 of the 2023 Act, arguing that it provides "unprecedented, unbridled power" to the CEC and ECs by granting them complete, permanent immunity for life from any civil and even criminal proceedings for wrongdoings in the gross misuse of their office. The petitioner contends that this level of protection exceeds what the framers of the Constitution envisioned, even for high-ranking officials such as the President, Governors, or judges. The counsel for the petitioner argued that Parliament cannot grant such a high level of immunity that the Constitution framers did not grant to other dignitaries.
According to the challenged provision, "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, or in the course of acting or purporting to act in the discharge of his official duty or function".
The petitioner asserts that by shielding Election Commissioners from civil or criminal liability for actions taken "in the course of duty," the provision weakens public oversight and could lead to unaccountable conduct by officials responsible for safeguarding democratic processes. The plea also argues that the provision disturbs the level playing field, potentially allowing the CEC and ECs to misuse their position for or against a political party, candidate, or the government. It is perceived that the immunity clause could embolden misconduct and erode public confidence in the independence of the ECI.
The 2023 Act, which replaced the 1991 law, has already faced criticism for altering the composition of the selection committee for election commissioners. The Act removed the Chief Justice of India from the panel and replaced him with a cabinet minister nominated by the Prime Minister. The immunity clause is the latest point of contention, with critics warning it could undermine the Election Commission's impartiality.
While the Supreme Court has issued notices to the Union government and the Election Commission, it has declined to stay the provision. The court has sought detailed responses from both parties but has not yet set a date for the next hearing. The court will examine if this kind of immunity could be granted in terms of the constitutional scheme. The Supreme Court has emphasized the necessity of its intervention to ensure the enforcement of the rule of law and to protect the proper functioning and future of democracy in the country.
