New Delhi, Oct. 13: A legal challenge to the immunity granted to India’s top election officials has reached the Supreme Court, which on Tuesday sought responses from the Union government and the Election Commission of India (ECI) on a petition questioning whether serving and former Chief Election Commissioners and Election Commissioners should receive blanket protection from civil and criminal proceedings for acts linked to their official duties.
A Bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V. Mohana issued notice on a public interest litigation filed by the Association for Democratic Reforms (ADR), challenging Section 16 of the Chief Election Commissioner and the other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The case is tentatively listed for further hearing on November 2, according to the Supreme Court’s website.
Section 16 bars courts from entertaining or continuing civil or criminal proceedings against serving or former election commissioners for any act, thing or statement made while discharging, or claiming to discharge, their official duties or functions.
ADR has argued that the provision violates Articles 14 and 19 of the Constitution. The organisation contends that such sweeping immunity undermines accountability and places constitutional functionaries beyond the ordinary legal process. It has also warned that the protection could prevent judicial scrutiny of alleged arbitrary exercise of power and corruption.
The petition adds to a series of legal challenges concerning the ECI’s powers, functioning and institutional independence. On October 5, the Supreme Court sought responses from the Centre, the ECI and the three Election Commissioners on a separate plea questioning whether Chief Election Commissioner Gyanesh Kumar could individually exercise or represent powers vested in the multi-member body.
That petitioner argued that Article 324 assigns the superintendence, direction and control of elections to the ECI as an institution, rather than to the CEC acting alone.
The appointment framework under the 2023 law is also under scrutiny. The legislation excludes the Chief Justice of India from the committee selecting the CEC and Election Commissioners. The committee instead comprises the Prime Minister, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister.
On September 23, a two-judge Supreme Court Bench delivered a split verdict on whether challenges to the law should go before a Constitution Bench. Justice Dipankar Datta opposed a reference, while Justice Satish Chandra Sharma favoured one, citing substantial questions of constitutional interpretation. They directed that the matter be placed before CJI Surya Kant to consider whether a Constitution Bench should examine the law’s validity.
The arrangement replaced the interim selection mechanism established by the Supreme Court’s March 2023 judgment in Anoop Baranwal v. Union of India, which included the CJI alongside the Prime Minister and the Leader of Opposition.
