The Supreme Court has issued notices to the Centre and Election Commission of India on a PIL challenging blanket immunity for Chief Election Commissioners and Election Commissioners under the 2023 law, raising questions about constitutional rights, accountability and judicial scrutiny.
The Supreme Court on Tuesday issued notices to the Union government and the Election Commission of India (ECI) on a public interest litigation challenging the blanket legal immunity granted to the Chief Election Commissioner (CEC) and other Election Commissioners under Section 16 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
A bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V. Mohana sought responses from the Centre and the poll panel on the petition filed by the Association for Democratic Reforms (ADR). The organisation has challenged the constitutional validity of the provision that protects serving and former Chief Election Commissioners and Election Commissioners from civil and criminal proceedings for acts, things or words connected with the discharge, or purported discharge, of their official duties.
According to the case status available on the Supreme Court’s website, the matter is tentatively listed for further hearing on November 2.
ADR Questions Blanket Legal Protection
Section 16 of the 2023 Act provides that no court shall entertain or continue civil or criminal proceedings against a person who is or was the Chief Election Commissioner or an Election Commissioner for an act, thing or word committed, done or spoken while acting, or purporting to act, in the discharge of official duties or functions.
ADR has argued that the provision violates Articles 14 and 19 of the Constitution. Article 14 guarantees equality before the law, while Article 19 protects specified fundamental freedoms, subject to constitutional restrictions.
The petitioner contends that granting such broad immunity to the country’s top election officials undermines accountability and could place them beyond the ordinary process of law. According to the plea, the provision may shield alleged arbitrary exercise of power and corruption from judicial scrutiny.
The petition has therefore raised questions about the balance between protecting constitutional functionaries while they perform their official responsibilities and ensuring that their conduct remains subject to appropriate legal scrutiny.
The Supreme Court’s decision to seek responses from the Centre and the ECI marks a further judicial examination of the statutory protections governing the country’s election administration. However, the issuance of notice does not mean that the court has accepted ADR’s arguments or ruled on the constitutional validity of Section 16.
Wider Scrutiny of Election Commission’s Powers
The latest petition comes amid a series of legal challenges concerning the statutory framework governing the appointment, functioning and independence of the Election Commission.
On October 5, the Supreme Court issued notices to the Centre, the ECI and the three Election Commissioners on a separate petition questioning whether Chief Election Commissioner Gyanesh Kumar could individually exercise or represent powers vested in the multi-member constitutional body.
The bench comprising CJI Surya Kant and Justices Bagchi and Mohana sought responses after senior advocate Vikas Singh, appearing for the petitioner, alleged that the functioning of the poll panel was inconsistent with the statutory framework governing the institution.
The petitioner argued that Article 324 of the Constitution vests the superintendence, direction and control of elections in the Election Commission as a constitutional institution rather than in the Chief Election Commissioner acting individually.
The challenge raises questions about the distribution of authority within the multi-member body and the manner in which the Election Commission exercises its constitutional responsibilities. The outcome could have implications for the interpretation of the commission’s institutional powers, depending on the court’s eventual findings.
Appointment Law Also Faces Constitutional Challenge
Separately, the constitutional validity of the 2023 law governing the appointment of the Chief Election Commissioner and Election Commissioners has also come under Supreme Court scrutiny.
One of the central issues concerns the exclusion of the Chief Justice of India from the selection committee responsible for recommending appointments to these positions.
Under the 2023 law, the selection committee comprises the Prime Minister, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister.
This arrangement replaced the interim mechanism prescribed by the Supreme Court in its March 2023 judgment in Anoop Baranwal v. Union of India. Under that arrangement, the selection committee included the Prime Minister, the Leader of Opposition and the Chief Justice of India.
On September 23, a two-judge bench of the Supreme Court delivered a split verdict on whether petitions challenging the 2023 law should be referred to a Constitution Bench.
Justice Dipankar Datta rejected the request for a reference to a larger bench, while Justice Satish Chandra Sharma held that the challenge raised a substantial question of constitutional interpretation and favoured placing the matter before a Constitution Bench.
Following the disagreement, the judges directed that the papers be placed before Chief Justice Surya Kant to consider whether a Constitution Bench should be constituted to examine the law’s validity.
Accountability and Electoral Independence in Focus
The latest proceedings bring renewed attention to the legal safeguards governing Election Commission officials, the extent of their protection while performing official duties and the institutional independence of the poll panel.
The questions before the court involve distinct but related issues: whether the statutory immunity under Section 16 is constitutionally valid, how powers vested in the Election Commission may be exercised by its members, and whether the framework for appointing election officials meets constitutional requirements.
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The Centre and the Election Commission are now required to respond to ADR’s challenge. The Supreme Court’s further consideration of the petitions will determine how these questions are examined under the Constitution and the 2023 law.
No final ruling on the validity of the challenged immunity provision has been issued in the present proceedings.
