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Supreme Court to examine challenge blanket permanent prosecution immunity to CEC, ECs
A life-long immunity to CEC and ECs is unprecedented; such an immunity is not even granted to the President, PM or judges, the petitioner said
The Supreme Court on Monday agreed to examine a constitutional challenge to the law granting blanket permanent immunity from any criminal prosecution to the chief election commissioner (CEC) and election commissioners for any of their acts or decisions in discharge of their official duty even as it refused to stay the law.
A bench headed by Chief Justice of India (CJI) Surya Kant sought the response of the Centre and Election Commission of India (ECI) while issuing notice on a public interest litigation (PIL) filed by a non-profit organisation Lok Prahari. The matter has been tentatively posted for hearing in March.
The NGO was represented by its founder SN Shukla, who questioned the immunity provided under section 16 of The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. Shukla said, “This kind of a life-long immunity to CEC and ECs is unprecedented. The Constitution does not grant such an immunity even to the President, Prime Minister or judges.”
The office of the Chief Election Commissioner and the Election Commission of India have come under increasing scrutiny in recent years, with opposition parties alleging that there have been irregularities in the conduct of elections. To be sure, none of these charges have been proved. ECI has also come under criticism for the special intensive revision of electoral rolls across several states, with opposition parties alleging that this is an attempt to disenfranchise their supporters. Again, there’s little by way of hard evidence to show that this is the case.
The bench, also comprising justice Joymalya Bagchi said, “A provision of law cannot be stayed like this. You have not shown how this law will impact you. This is a public interest litigation. We will examine whether this kind of immunity can be granted based on our constitutional scheme.”
Shukla argued that this provision was not originally there in the bill introduced in the Parliament and that the clause was brought in at the last minute by the government.
This law was brought soon after a Constitution Bench of the Supreme Court directed the creation of a committee comprising Prime Minister, Leader of Opposition, and Chief Justice of India to recommend names for appointment of CEC and ECs, as a measure to introduce transparency in selection of officers entrusted with conduct of free and fair polls. With the introduction of the 2023 Act, the Parliament replaced CJI or his nominee with a Union minister. This aspect of the law is under challenge before the court in separate proceedings.
The petition alleged that section 16 creates an unequal classification by providing such a protection exclusively to one class of officers. “This provision is beyond the competence of the Parliament, and also violative of Articles 14 and 324(5) of the Constitution being arbitrary and irrational.”
Shukla sought a declaration from the court to declare the provision unconstitutional so as to ensure level playing field in elections and free and fair elections .
