Supreme Court issues notice on plea challenging blanket immunity granted to CEC Gyanesh Kumar, ECs amid SIR row

The Supreme Court on Wednesday issued notice to the Centre and the Election Commission of India (ECI) on a petition challenging the blanket legal immunity granted to the Chief Election Commissioner (CEC) and Election Commissioners (ECs) for their official acts.

A bench of Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana sought responses on the plea filed by activist-lawyer Arun Kumar Agrawal. The petition wants Section 16 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 struck down as unconstitutional.

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Section 16 stops courts from entertaining or continuing any civil or criminal case against a serving or former CEC or EC for acts done in the course of their official duties.

The petitioner says the immunity is excessive because it has no exception even for acts allegedly done without good faith. “Independence of the Election Commission does not mean that its members should be free from legal accountability,” the plea states.

It adds that safeguards against frivolous complaints and prior judicial scrutiny would protect commissioners without closing every legal remedy. At present, the plea says, voters, candidates and citizens are left without recourse against alleged wrongful or mala fide actions by the Commission.

Earlier hearings

This is not the first challenge to the clause. In January, the top court issued notice to the Centre and the ECI on a plea by the NGO Lok Prahari against Section 16, but refused to stay the provision. That plea had argued that the clause gives “unprecedented, unbridled power” to the CEC and ECs.

On October 13, the same bench issued notice on another plea against Section 16, filed by the Association for Democratic Reforms (ADR). It tagged that plea with the pending Lok Prahari petition.

How Section 16 came in

The immunity clause was not part of the Bill when it was first introduced in the Rajya Sabha in August 2023. The government added it through an amendment in December 2023, before Parliament passed the law. The petitioner says no adequate reason was given for such sweeping protection.

The Act replaced the 1991 law on election commissioners. It came after the Supreme Court’s March 2023 Anoop Baranwal ruling, which said the CEC and ECs should be picked by a panel of the Prime Minister, the Leader of Opposition and the Chief Justice of India. The new law replaced the CJI in that panel with a Union Cabinet minister.

The latest petition also points to the ongoing Special Intensive Revision (SIR) of electoral rolls. It cites reported objections by election commissioners to parts of the exercise and alleged concerns over the software being used.

It also refers to allegations about CEC Gyanesh Kumar’s conduct during his earlier tenure as Kerala’s Public Works Department Secretary. The plea argues that blanket immunity should not extend to acts lacking good faith.

(With inputs from ANI)