The Supreme Court on Wednesday agreed to examine pleas challenging the constitutional validity of a provision in the 2023 law that grants blanket immunity from civil and criminal proceedings to the Chief Election Commissioner (CEC) and Election Commissioners for acts performed or purportedly performed in the discharge of their official duties.
A bench comprising Chief Justice Surya Kant and Justices Joymalya Bagchi and V Mohana issued notices to the Centre on petitions filed by RJD MP Manoj Jha and activist Arun Agrawal, seeking its response within four weeks.
According to a PTI report, the bench told advocate Fauzia Shakil, appearing for Jha, and advocate Neha Rathi, representing Agrawal, that the matter would be tagged with a petition already pending before the court on the same issue. It scheduled the matter for hearing on December 18.
Jha has challenged 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 anyone who is or was a CEC or Election Commissioner for any act, thing or word committed, done or spoken while, or in the course of, acting or purporting to act in the discharge of official duties.
In his plea, the RJD MP argued that the provision grants unelected constitutional functionaries a degree of protection not available to the President, members of Parliament or judges of the Supreme Court and high courts.
"Parliament, by a late official amendment to an ordinary Bill, has handed the Chief Election Commissioner and the Election Commissioners a protection wider than all of them: civil and criminal, during office and for life after it, with no carve-out for corruption, mala fides or crime, and with no authority anywhere empowered to lift it," the plea said.
Jha argued that while the President can be prosecuted for an offence after demitting office, a former Election Commissioner cannot be prosecuted at any point under the provision.
"A Member of Parliament who takes a bribe to vote can be tried but an Election Commissioner who takes a bribe while 'purporting' to act in office arguably cannot. A sitting judge of this court can be prosecuted with sanction yet a retired election commissioner cannot be prosecuted with or without it. The Constitution places no functionary above the law, however Section 16 of the CEC does," the plea said.
The MP further contended that Parliament cannot achieve through ordinary legislation what it cannot do by directly amending the Constitution, arguing that immunity from the ordinary law is a matter governed by the constitutional text.
He cited Article 361, which provides protection to the President and Governors, and Articles 105 and 194, which deal with the privileges of legislators. Article 324, which governs the Election Commission, does not provide similar immunity to the CEC or Election Commissioners, he said.
"The framers gave the Chief Election Commissioner security of tenure i.e. removal only in the manner of a Supreme Court Judge as per Article 324(5), however they never intended or gave immunity from prosecution," the plea said.
Agrawal, in his separate petition, argued that Section 16 was excessively broad as it barred all forms of prosecution, including those relating to corruption, forgery and other serious offences.
"The term 'is or was' provides for lifelong immunity, 'purporting to act' covers acts that may be outside lawful authority but is projected as an official act and most importantly does not contain any good faith condition," his plea said.
He contended that the provision wrongly equated the independence of the Election Commission with freedom from the law, placing its members beyond judicial scrutiny.
Agrawal argued that the Constitution safeguards the independence of constitutional bodies through security of tenure and protection against arbitrary removal by the government, but does not require blanket immunity from legal proceedings.
"Hence blanket protection from legal proceedings conferred by Section 16 of the 2023 Act to secure the object of independence is bad in law and has no nexus to the object of safeguarding the independence of the Election Commission," the plea said.
The activist also argued that the objective of protecting Election Commissioners from vexatious proceedings could be achieved through less restrictive safeguards, including measures against frivolous complaints and prior judicial scrutiny.
"Granting blanket immunity is therefore excessive and goes beyond what is necessary to protect the independence of the Election Commission. The said section takes away every civil and criminal remedy against the CEC and ECs for their acts," the plea said.
It further argued that the provision leaves voters whose names are wrongly deleted from electoral rolls, candidates affected by alleged mala fide actions and citizens aggrieved by corruption in the functioning of the Election Commission without a legal remedy.
(With inputs from PTI)