The Supreme Court on Monday, 5 October, raised a striking observation about the scope of legal protection afforded to the Chief Election Commissioner (CEC) and other Election Commissioners under the 2023 Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act. While hearing petitions that challenge decisions allegedly taken unilaterally by CEC Gyanesh Kumar in connection with the Special Intensive Revision (SIR) of electoral rolls, a three‑judge bench suggested that the statutory immunity may be broader than that granted to judges of the constitutional courts.
Bench composition and petitioners’ arguments
The hearing was conducted by a bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana. Senior Advocate Vikas Singh, appearing for the petitioner, argued that the 2023 Act had substantially amplified the authority and immunity of the CEC and the Election Commissioners. He highlighted Section 16 of the Act, which shields the CEC and Commissioners from civil or criminal proceedings for acts performed in the discharge—or purported discharge—of their official functions, and notes that the protection continues even after they leave office.
Singh emphasized that the statutory scheme places the CEC on a “pedestal even higher than Supreme Court judges,” and asserted that “even the Prime Minister does not have this.” He further contended that the Election Commission of India (ECI) is “more powerful today than any other constitutional authority.”
Judicial observation on the breadth of protection
During the hearing, Justice Joymalya Bagchi made a notable comment on the comparative reach of the protection. He remarked, “This protection is perhaps only for the President. It does not apply even to judges.” The observation underscored the perception that the 2023 Act grants a level of immunity that exceeds that extended to members of the judiciary.
Singh agreed with the bench’s observation, reinforcing his earlier submission that the statutory framework had effectively placed the CEC in a position of extraordinary legal protection, surpassing that of the country’s top judges.
Legal framework: Section 16 of the 2023 Act versus the Judges (Protection) Act, 1985
The protection for Election Commissioners under the 2023 Act mirrors the language of Section 3(1) of the Judges (Protection) Act, 1985, which shields Supreme Court and High Court judges from civil or criminal proceedings for acts done in the discharge of their official duties. However, the Judges (Protection) Act contains a crucial safeguard in Section 3(2). That clause expressly preserves the power of the Central Government, State Government, the Supreme Court, High Courts, or any other competent authority to initiate civil, criminal, departmental, or other proceedings against a judge.
By contrast, the 2023 CEC Act does not contain an equivalent provision. The absence of a clause that saves the power of competent authorities to take action against Election Commissioners means that the immunity granted by Section 16 stands without a statutory exception. This structural difference formed the crux of the petitioner’s argument that the CEC enjoys a broader shield than judges, whose protection is subject to a statutory carve‑out.
The Supreme Court, after hearing the submissions, issued notice to the Union Government, the Election Commission, the Chief Election Commissioner and the Election Commissioners on the petition. The notice signals that the court will examine the constitutionality and extent of the lifelong immunity conferred by the 2023 Act.
In addition to the petitions concerning the SIR process, the court is also seized of another petition that directly challenges the lifelong immunity granted to Election Commissioners. The parallel proceedings underscore a growing judicial scrutiny of the balance between electoral administration independence and accountability.
Other matters raised during the hearing included a separate request to suspend CEC Gyanesh Kumar ex parte, which the Supreme Court declined, and a procedural point that the Modified Form 6 has not been approved by the Supreme Court, as noted by Chief Justice Surya Kant.
The observations made by Justice Bagchi and the arguments presented by Senior Advocate Singh have sparked a broader debate about the constitutional hierarchy of immunities. While the Judges (Protection) Act explicitly allows for governmental or judicial intervention against judges, the 2023 CEC Act’s silence on such a safeguard raises questions about whether the Election Commission’s independence has been elevated to a level that could limit oversight.
Legal experts, though not quoted in the hearing, have previously warned that excessive immunity could impede accountability mechanisms, especially in matters involving the preparation and revision of electoral rolls—a core function of the Election Commission. The petitions before the Supreme Court therefore seek clarification on whether the statutory immunity aligns with constitutional principles of checks and balances.
As the case proceeds, the Supreme Court’s forthcoming judgment will likely delineate the permissible scope of protection for Election Commissioners and may set a precedent for how statutory immunities are crafted for constitutional offices in India.
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