The Supreme Court on Wednesday sought a response from the Central government and the Election Commission of India (ECI) to a plea challenging a legal provision that protects the Chief Election Commissioner (CEC) and other Election Commissioners (EC) from any legal action for any act done in the course of their duties.
A Bench of Chief Justice of India (CJI) Surya Kant and Justices Joymalya Bagchi and V Mohana issued notice on a petition filed by activist and lawyer, Arun Kumar Agrawal.
The plea challenges the constitutional validity of Section 16 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
This provision extends lifelong protection to the CEC and EC from civil or criminal proceedings for acts done in the discharge of their official duties.
The plea points out that similar protection to other constitutional functionaries for actions done in the course of their duties usually extends only to acts done or intended to be done in good faith.
The petition recounts that such a balanced approach was also adopted initially when it came to Election Commissioners, before Section 16 was introduced through the 2023 Act.
"Despite the absence of such blanket immunity, the Election Commission of India has successfully conducted elections over several decades. This shows that the Commission can function effectively without granting its members blanket immunity from legal proceedings,"the plea adds.
However, under Section 16, the CEC and ECs have been granted blanket immunity without any exception. Such an approach unconstitutional, disproportionate and liable to be struck down, the petitioner has contended.
"The objective of protecting Election Commissioners from vexatious proceedings can be achieved through less restrictive measures, such as safeguards against frivolous complaints and prior judicial scrutiny. Granting blanket immunity is therefore excessive and goes beyond what is necessary to protect the independence of the Election Commission. The said section takes away every civil and criminal remedy against the CEC and ECs for their acts. A voter whose name is wrongly deleted from the electoral roll, a candidate prejudiced by a mala fide act, and any citizen aggrieved by corruption in the functioning of the Commission are left without a remedy," the plea states.
The plea also recounted that the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill initially did not initially contain any provision granting such blanket immunity to the CEC and ECs.
A later amendment proposed to the Bill, with a clause to grant blanket immunity to the CEC and ECs, was not accompanied by any reasons for such a move, the petitioner added.
"The Minister’s justification during the parliamentary debate did not demonstrate that the provision was necessary to enable the Election Commissioners to discharge their functions independently and unhindered. The absence of any demonstrated necessity for the impugned provision, particularly one conferring such sweeping protection against civil and criminal proceedings, raises serious concerns regarding the application of mind to its necessity, scope and proportionality," the plea states.
The petitioner further recounted that the final version of the Bill, with the protection clause for the CEC and the ECs, was passed by the Parliament at a time when a large number of its Members (Opposition MPs) were placed under suspension.
"That independence of the Election Commission does not mean that its members should be free from legal accountability. While protection from undue interference is necessary, the same cannot justify a blanket bar on legal proceedings against them," the petitioner has asserted.
The plea further states that this issue assumes significance in the wake of alleged irregularities reported in the conduct of the ongoing Special Intensive Revision (SIR) of electoral rolls.
Reference has been made to Indian Express reports on alleged objections raised by two ECs to certain aspects of the SIR exercise and concerns about the integrity of the software used to carry out the SIR.
"Serious questions have also arisen concerning the conduct of the present Chief Election Commissioner, Gyanesh Kumar, in relation to allegations dating back to his tenure as Secretary of the Public Works Department, Government of Kerala," the plea points out.
In this context, the petitioner has questioned whether the law should extend blanket immunity to election commissioners even in respect of acts that may not have been carried out in good faith.
The petitioner has, therefore, urged the top court to declare Section 16 of the 2023 Act unconstitutional.
Advocate Neha Rathi appeared for the petitioner.
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