The debate over immunity to CEC, ECs

Why in the News

The Chief Election Commissioner (CEC) and Election Commissioners (ECs) have moved from the ordinary legal liability of public officials to a lifelong bar on court cases over their official acts, a shield wider than the one the Constitution gives the President. The Supreme Court has issued notice to the Centre on a petition by the Association for Democratic Reforms (ADR) challenging that immunity.

What does Section 16 grant, and how did it enter the law?

1. What it is: Section 16 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Terms of Office) Act, 2023 is a permanent shield for the poll body’s members, lasting beyond retirement.
2. Scope of the bar: No court may entertain civil or criminal proceedings against a serving or former CEC or EC for acts “taken or purported to be taken” in official duties.
3. Stated purpose: The Union Law Minister said the shield would let the CEC and ECs work in an unhindered and independent manner.
4. Late insertion: The clause was added only on the day the Rajya Sabha passed the Bill. So the Bill’s Statement of Objects and Reasons, its note of purpose, gives no reason for it.
5. The takeaway: Parliament gave the poll body a protection no court can lift, without the scrutiny a Bill clause normally receives.

How does equality before law limit special protection?

1. Article 14: The State shall not deny any person equality before the law or the equal protection of the laws. Equality is a Fundamental Right and part of the basic structure, which no amendment can remove.
2. Two limbs of equality: Equality before law, from British jurist A.V. Dicey’s Rule of Law, means no special privileges and no person above the law. Equal protection, an American concept, means equal treatment in equal circumstances.
3. Reasonable classification: A law may treat groups differently only on an intelligible and reasonable distinction linked to its purpose. So a law shielding one office needs a reasonable ground.

How do the Constitution’s own immunities compare?

1. President and Governors: Article 361 bars criminal proceedings, arrest or imprisonment only during their term of office, and civil suits need two months’ notice. Even this is criticised as a colonial relic.
2. Legislators: Articles 105 and 194 give MPs and MLAs privileges such as freedom of speech and vote, still not written into any law and largely confined to acts inside the Houses during a session.
3. Diplomats: Foreign diplomats are immune from civil and criminal cases under the Vienna Convention. More than 190 countries grant this on a reciprocal basis, for functional necessity, so envoys can do their work.

Why is lifelong immunity hard to justify?

1. Other independent offices: Judges, the Comptroller and Auditor General (CAG), Public Service Commission members, the Lokpal and Lokayuktas and Information Commissioners also act independently. None has lifelong and unconditional immunity.
2. Earlier law: The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 had no such provision.
3. Case for repeal: Blanket immunity for the CEC and ECs must not remain on the statute books.

Challenges

1. “Purported” acts: Protecting acts only “purported” to be official can shield conduct that merely claims an official purpose.
2. No remedy for those harmed: A voter or candidate wronged by a Commissioner cannot sue or prosecute, even after the officer retires.
3. Public trust: A poll body placed beyond the courts loses the public trust its decisions depend on.

Way Forward

1. Good faith test: Parliament should replace the blanket bar with protection only for acts done in good faith.
2. Sanction filter: Require prior sanction to prosecute a Commissioner, as the Bharatiya Nagarik Suraksha Sanhita, 2023 does for public servants.
3. Committee scrutiny: Refer substantive amendments moved at passage to a parliamentary committee.

Conclusion

Lifelong immunity for the poll body’s members goes further than the protection the Constitution gives any office. Whether the Supreme Court strikes the clause down, reads it down to good faith acts or upholds it as a guarantee of independence will decide how far Parliament can place an office beyond the courts.

Back2Basics: CEC & EC Act, 2023

1. Selection committee: The President appoints the CEC and ECs on the recommendation of the Prime Minister, a Cabinet Minister he nominates and the Leader of Opposition in the Lok Sabha.
2. Pending challenge: Anoop Baranwal v. Union of India (2023) had placed the Chief Justice of India on the panel. Petitions against the Act for dropping the Chief Justice await a Constitution Bench.

Matching Previous Year Question

“[2026, GS2, 10 marks] Is the right to vote a fundamental right? Discuss the position of the Election Commission of India while undertaking the revision of electoral rolls. Can it also examine the question of citizenship of voters?”