Supreme Court Seeks Response on Constitutional Validity of Lifelong Immunity Provision for Election Commissioners

The Supreme Court has sought a response from the Union government and the Election Commission of India (ECI) on petitions challenging the constitutionality of Section 16 of The Chief Election Commissioner And Other Election Commissioners (Appointment, Conditions Of Service And Term Of Office) Act, 2023.

A Bench headed by Chief Justice of India Surya Kant issued the notice on Wednesday. The petitions were filed by RJD MP Manoj Jha, represented by advocate Tanya Srivastava, and advocate Arun Kumar Agrawal, represented by advocate Neha Rathi. The court has listed the matter for further hearing on December 18.

The challenging petitions state that Section 16 is unconstitutional, exceeds the powers given to the ECI, and violates the Basic Structure of the Constitution. According to the submission, the provision bars the jurisdiction of constitutional courts and interferes with the power of judicial review, which is recognized as a part of the Basic Structure of the Constitution.

The petitioners highlighted that a plain reading of Section 16 bars any court from entertaining or continuing civil or criminal proceedings against any current or former Chief Election Commissioner or Election Commissioner. This protection applies to any act, thing, or word done or spoken while discharging official duties or functions.

Advocate Agrawal’s plea contended that the text of the provision grants wide-ranging protection, barring all kinds of prosecution, including corruption, forgery, and other serious offenses. The petitions noted that the lifelong immunity covers acts that may fall outside lawful authority and does not distinguish between mala fide and bona fide actions under the guise of preventing frivolous complaints.

The legal challenge further argues that the provision fails the test of proportionality. The petitioners stated that every person has a right to a remedy, a fair investigation, and access to justice, which form facets of Articles 14 and 21 of the Constitution.

The petitions pointed out that prior to the enactment of the 2023 Act, Parliament had not granted blanket immunity to Election Commissioners. Over several decades, the ECI successfully conducted elections in the absence of such immunity, indicating that the commission can function effectively without granting its members blanket protection from legal proceedings.

Furthermore, the petitioners drew comparisons with existing constitutional provisions. Under Article 361 of the Constitution, the President and State Governors enjoy express constitutional immunity for official acts, but this immunity is not absolute. Criminal proceedings are barred only during their term of office, and civil proceedings are permitted after notice. Additionally, judges of constitutional courts do not possess absolute immunity from civil or criminal proceedings.

"This legal challenge highlights the delicate balance between ensuring institutional independence and maintaining judicial accountability. In governance and regulatory frameworks, absolute immunity without distinction between bona fide and mala fide actions often raises concerns regarding checks and balances. For businesses, entrepreneurs, and public institutions alike, regulatory clarity and adherence to the principles of accountability and rule of law remain foundational for maintaining public trust and institutional integrity." — Dr. Shishir Gupta, Founder & CEO, StartupLanes