New Delhi. The matter of blanket immunity granted to the country's Chief Election Commissioner (CEC) and other election commissioners from legal action for their official work has now reached the Supreme Court. The Supreme Court on Tuesday issued a notice to the Central Government and the Election Commission of India on the PIL challenging this exemption. Due to this move of the court, the questions related to the legal protection given to the election commissioners and their accountability have again come into discussion. The petition said that such broad immunity could exclude officers holding constitutional posts from the normal legal process.
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A bench of Supreme Court Chief Justice Surya Kant and Justice Joymalya Bagchi and Justice V. Mohana, while hearing the petition of Association for Democratic Reforms (ADR), sought response from the Center and the Election Commission. The petition challenges Section 16 of the 2023 Act relating to the appointment, conditions of service and tenure of the Chief Election Commissioner (CEC) and other election commissioners. The next hearing of the case is likely to be held on November 2. At the heart of the controversy is a provision that protects former or currently serving Chief Election Commissioners and Election Commissioners from civil and criminal prosecution for things done, acted or said while performing official duties.
What is the provision in Section 16?
According to this section, no court shall commence or continue any civil or criminal proceeding against a person who is or has been the Chief Election Commissioner (CEC) or an Election Commissioner. This protection applies to acts, acts or statements made by him in the performance of his official duty or responsibility or in the performance of his official duty. This comprehensive security has been questioned in the petition challenging this provision. Is this exemption against constitutional rights? ADR argues that Section 16 violates Articles 14 and 19 of the Constitution. According to the petition, providing such broad legal protection could weaken accountability and hinder judicial investigation into cases of alleged arbitrariness or corruption. However, these are the allegations and arguments of the petitioner. The Supreme Court has not yet given its final decision on these.
Have questions been raised before about the powers of the Election Commission?
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On October 5, the Supreme Court had issued a notice to the Central Government, the Election Commission and the three Election Commissioners on a separate petition. The question raised in that petition was whether Chief Election Commissioner Gyanesh Kumar can exercise the powers of a multi-member constitutional body or represent it alone.
Senior advocate Vikas Singh, appearing for the petitioner, had argued that the functioning of the commission is not in accordance with the law governing it. Citing Article 324 of the Constitution, the petition said that the power to monitor, direct and control elections has been given to the Election Commission as an institution and not just to the Chief Election Commissioner individually. In this case also the court had sought answers from the parties concerned.
Why the controversy over the law regarding appointment of election commissioners?
A judicial inquiry is also underway on the constitutional validity of the 2023 law. The controversy is over the arrangement under which the Chief Justice of India is excluded from the selection committee that appoints the Chief Election Commissioner and other election commissioners. On September 23, a two-judge bench of the Supreme Court had given different opinions on the question of sending the petitions challenging this law to the Constitution Bench. Justice Dipankar Dutta rejected the demand to send the matter to a larger bench, while Justice Satish Chandra Sharma supported placing it before the Constitution Bench, considering it an important question related to the interpretation of the Constitution. Both the judges directed to place the papers of the case before Chief Justice Surya Kant, so that formation of a Constitution bench could be considered. Under this law, the selection committee consists of the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Union Cabinet Minister nominated by the Prime Minister. Earlier in March 2023, under the interim arrangement of the Supreme Court in the case of Anoop Baranwal vs Union of India, the committee included the Prime Minister, Leader of Opposition and Chief Justice.