The Supreme Court has issued notice to the Central government and the Election Commission on a petition challenging the legal immunity granted to the Chief Election Commissioner (CEC) and other election commissioners for official functions. The Association for Democratic Reforms (ADR) has raised questions on the constitutional validity of Section 16 of the Election Commissioner Act, 2023. In the petition, this provision has been described as contrary to Articles 14 and 21 of the Constitution and the basic structure of the Constitution.
Tezzbuzz Desk – The Supreme Court on Tuesday heard the case regarding legal immunity granted to the Chief Election Commissioner and other election commissioners for acts done in the discharge of their official duties. The bench of Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana has issued a notice to the Central Government and the Election Commission seeking their response.
This petition has been filed by the Association for Democratic Reforms (ADR). In this, the legal protection given to the Chief Election Commissioner and other Election Commissioners for the work done in the course of official work has been challenged. The petitioner has sought to declare Section 16 of the Election Commissioner Act, 2023 as unconstitutional.
What is the provision in Section 16?
Under Section 16 of the Election Commissioners Act, 2023, no civil or criminal proceedings can be initiated in any court against the Chief Election Commissioner or an Election Commissioner in respect of any act, thing or statement made in the discharge of his official duties. This protection also applies to those persons who have previously held these positions.
ADR has questioned the constitutional validity of this provision, saying it violates Articles 14 and 21 of the Constitution as well as the Basic Structure of the Constitution. The petition also demands that the proceedings against present or former Chief Election Commissioners and Election Commissioners, which had lapsed due to the imposition of Section 16, be allowed to be restarted.
Questions also raised regarding amendment in the bill
According to the petitioner, Section 16 was not part of the original Bill. It was included through amendment during the legislative process. ADR says that this provision was added at a time when many opposition MPs were suspended.
According to the petition, this provision was proposed as new Article 15A through an official amendment issued on 11 December 2023 and introduced in the Rajya Sabha on 12 December 2023. ADR has alleged that there was no detailed debate in the House on this provision. The rationale behind its inclusion was to help the Chief Election Commissioner and the Election Commissioners to work independently. On the same day the proposals to send the bill to the select committee were rejected and the bill was passed.
Subramanian Swamy vs CBI case cited
ADR has also mentioned the Subramanian Swamy vs CBI case in its petition. The petitioner argues that the independent status of Chief Election Commissioners and Election Commissioners from 1950 to 2023 was ensured by the provisions of the Constitution, hence the need for such additional legal exemption for them arises into question.
Citing Article 14, the petition said that the constitutional validity of treating an officer or public servant differently in the matter of investigation or legal action on the basis of his position should be considered.
At present, the Supreme Court has sought answers from the Central Government and the Election Commission. The final decision on the constitutional validity of Section 16 in this case is yet to come.