Supreme Court Issues Notice In Petition Challenging Complete Immunity For CEC, ECs
The plea argues blanket protection from legal proceedings conferred on the Election Commissioners by Section 16 of the 2023 Act is bad in law and has no nexus to the object of safeguarding the independence of the Election Commission.
Supreme Court plea argues protecting Election Commissioners from vexatious proceedings can be achieved through less restrictive measures.
The Supreme Court today has issued notice in a PIL challenging the complete immunity granted to the Chief Election Commissioner and Election Commissioners for anything done or said while acting, or purporting to act, in the discharge of their official duties.
A bench comprising the CJI Surya Kant, Justice Bagchi and Justice Mohana has sought the Centre's response on the plea filed by Activist Arun Agrawal. The petition challenges Section 16 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which gives the CEC and the other ECs such immunity.
Advocate Neha Rathi appeared for the petitioner.
Section 16 bars all kinds of prosecution including corruption, forgery and other serious offences. The petition submits the provision is unconstitutional and arbitrary as it wrongly equates independence with freedom from the law, placing the authorities responsible for conducting elections beyond judicial scrutiny.
Drawing parallels, the petition argued that under Article 361 of the Constitution of India, the President of India and the Governors of States enjoy express constitutional immunity in respect of the exercise and performance of their official powers and duties but the immunity so provided is not absolute and Article 361 bars criminal proceedings against the President and the Governors only during the term of office and permits civil proceedings after notice.
"That Judges of the Constitutional Courts of India do not enjoy an absolute immunity from civil or criminal proceedings. Section 3 of the Judges (Protection) Act, 1985 provides protection to Judges against civil or criminal proceedings. However, Section 3(2) expressly preserves power of competent authority to take such action, including civil or criminal proceedings, against a person who is or was a Judge," the plea adds.
It is further argued Section 16 of the 2023 Act bars jurisdiction of Constitutional courts and therefore interferes with the power of Judicial Review which is held to be a part of Basic Structure of Constitution.
"Section 16 further bars proceedings that can be instituted under defamation law, contempt law (under Articles 129 and 215) and all other civil or criminal liabilities for lifetime without distinguishing between mala fide and bona fide acts just to prevent frivolous complaints. The said object to ensure independence by taking such sweeping measures fails the test of proportionality. That every person has a right to a remedy and to a fair investigation, and access to justice is a facet of Articles 14 and 21," court has been told.
The plea argues section 16 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 petition states.
Case Title: ARUN KUMAR AGRAWAL vs. UNION OF INDIA & ANR.
Bench: CJI Kant, Justice Bagchi And Mohana
Hearing Date: November 4, 2026