New Delhi: The Supreme Court Tuesday issued notice to the Centre and the Election Commission of India (ECI) on a public interest litigation challenging the blanket immunity granted to the Chief Election Commissioner (CEC) and other Election Commissioners under Section 16 of the Chief Election Commissioner and the other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
A bench of Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V. Mohana sought responses from the Union government and the poll panel on a plea filed by the Association for Democratic Reforms (ADR) challenging the provision that grants serving and former CECs and Election Commissioners immunity from legal proceedings for acts, things or words committed, done or spoken in the course of discharging, or purporting to discharge, their official duties.
As per the case status available on the apex court’s website, the matter is tentatively listed for further hearing November 2.
Section 16 states: “Notwithstanding anything contained in any other law for the time being in force, no Court shall entertain or continue any civil or criminal proceedings against any person who is or was a Chief Election Commissioner or an Election Commissioner for any act, thing or word, committed, done or spoken by him when, or in the course of acting or purporting to act in the discharge of his official duty or function.”
ADR has contended that the provision violates Articles 14 and 19 of the Constitution, arguing that granting such sweeping protection to the constitutional functionaries undermines accountability and places them beyond the ordinary process of law.
The plea has questioned the grant of blanket immunity to the CEC and Election Commissioners, contending that the provision could shield alleged arbitrary exercise of power and corruption from judicial scrutiny.
The PIL comes amid wider judicial scrutiny of the statutory framework governing the appointment and functioning of the poll panel, including the manner in which its powers are exercised and the independence of its decision-making process.
October 5, the Supreme Court had issued notice to the Centre, the ECI and the three Election Commissioners on a separate plea questioning whether CEC Gyanesh Kumar could individually exercise or represent powers vested in the multi-member constitutional body.
A Bench of CJI Surya Kant and Justices Bagchi and Mohana had sought responses after senior advocate Vikas Singh, appearing for the petitioner, alleged that the functioning of the poll panel was contrary to the statutory framework governing it.
The petitioner had argued that Article 324 of the Constitution vests the superintendence, direction and control of elections in the ECI as an institution, rather than in the CEC acting individually.
Meanwhile, the constitutional validity of the 2023 law excluding the Chief Justice of India from the selection committee for appointing the CEC and Election Commissioners has also come under judicial scrutiny.
September 23, a 2-judge Bench of the Supreme Court delivered a split verdict on whether petitions challenging the law should be referred to a Constitution Bench. While Justice Dipankar Datta rejected the plea for reference to a larger Bench, Justice Satish Chandra Sharma held that the challenge raised a substantial question of constitutional interpretation and favoured placing the matter before a Constitution Bench. The two judges directed that the papers be placed before CJI Surya Kant to consider the desirability of constituting a Constitution Bench to examine the validity of the 2023 Act.
Under this 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, replacing the earlier interim arrangement prescribed by the Supreme Court in its March 2023 judgment in Anoop Baranwal v. Union of India, which included the CJI in the committee, apart from the Prime Minister and the Leader of Opposition.
