The Supreme Court on Monday agreed to hear a petition questioning the constitutional validity of a provision in the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which grants sweeping immunity to top election officials.
A bench led by Chief Justice of India Surya Kant and Justice Joymalya Bagchi issued notice to the Union government and the Election Commission of India (ECI) on the public interest litigation (PIL) filed by Lok Prahari, a Lucknow-based NGO. However, the court declined to stay the operation of the provision at this stage.
The challenge pertains to Section 16 of the 2023 Act, which 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, or in the course of acting or purporting to act in the discharge of his official duty or function.”
This means that both serving and former Chief Election Commissioners (CECs) and Election Commissioners (ECs) are granted total immunity from legal proceedings for any act purportedly done in discharge of their duties — even after demitting office.
The petition, filed by Lok Prahari, contends that this provision provides “unprecedented, unbridled power” to the CEC and ECs by insulating them from all legal accountability — both civil and criminal — for life.
The PIL argues that such blanket immunity is unconstitutional, undermines the principle of equality before law, and opens the door for potential misuse of power by election officials with no fear of legal consequences.
While agreeing to examine the matter, the court has not stayed the provision. It has sought responses from the Centre and the Election Commission, which are expected to defend the provision as a safeguard for independent functioning of the constitutional body.
The CEC Act, 2023, was passed by Parliament to govern the appointment and service conditions of the Election Commission’s top officials after the Supreme Court, in a landmark 2023 ruling, called for greater transparency and impartiality in their selection process.
However, the inclusion of Section 16 has triggered concern among legal experts and civil society groups, who see it as a regressive clause that undermines the principles of democratic accountability.
