A petition filed in November 2025 by Lok Prahari, an Uttar Pradesh-based NGO, challenging Section 16 of the Chief Election Commissioner and Other Election Commissioners Act, 2023, has been pending before the Supreme Court for months, with insubstantial gain. It has acquired fresh urgency after the Court observed orally on 5 October 2026 that the protection extended to the commission may be broader than that enjoyed even by judges of constitutional courts. Section 16 bars every civil and criminal court from entertaining or continuing proceedings against a person who is or was a Chief Election Commissioner or Election Commissioner for any act, thing or word done in the course of acting, or purporting to act, in the discharge of official duty. The provision has no express exception for mala fide acts. The Commission's independence is a constitutional necessity, but in Mohinder Singh Gill v. Chief Election Commissioner, the court said that no one is an imperium in imperio in our constitutional order and that the Commission must act bona fide. Therefore, Section 16 should be sustained only if it protects the office and not the officeholder, and only if it is read down to cover bona fide acts within official duty.
INSTITUTIONAL INDEPENDENCE OR INDIVIDUAL IMMUNITY?
The statutory framework governing immunity for the Election Commission's members is established in Section 16 of the Chief Election Commissioner and Other Election Commissioners Act, 2023. Per Section 16, no court shall entertain or continue any civil or criminal proceeding against a person who is or was a CEC or an EC for any act, thing or word done or spoken in the discharge, or purported discharge, of official duty. Each element of the language widens the protection. The non-obstante clause allows Section 16 to override other statutes, which raises the question of how it interacts with ordinary criminal and anti-corruption laws. The words “entertain or continue” mean the bar applies at the threshold and also vitiates ongoing proceedings. Both civil and criminal liability are covered. The phrase “is or was” extends the protection beyond tenure, making it a lifelong protection. The phrase “act, thing or word” covers spoken statements as well as formal decisions. The most contested part of the provision is “purporting to act,” because it arguably protects conduct that only claims the cover of official duty.
What the section omits matters as much as what it says. On its face, it contains no exception for mala fide or corrupt acts, no requirement of prior sanction or leave before proceedings can be barred, and no express explanation that judicial review of the Commission's decisions remains available. This sets it apart from the standard statutory framework for public officials, where protection typically operates as a procedural gateway, such as a sanction requirement, and not as a complete bar on courts.
The text of Section 16 settles what is barred. It does not resolve whether the bar is justified. The Constitution already protects the Commission's independence through the removal safeguard in Article 324(5), and the 2023 Act adds a collegial decision-making rule in Section 18. Therefore, the question is not whether the Commission must be independent, but whether independence requires a lifelong bar on every civil and criminal proceeding against those who run it. That is a question of accountability, and it is where the challenge to Section 16 now stands.
WHAT ACCOUNTABILITY SURVIVES SECTION 16?
If Section 16 limits the enforcement criteria, such as oversight bodies, court challenge, then the duty of commission has no practical effect and accountability is lost. Therefore, the question is whether anything remains to enforce that duty once Section 16 applies.
A writ court can scrutinize whether a Commission order is lawful or not, so the order can be quashed. But the officeholder who passed it cannot be questioned and interrogated. Amending an order is not equivalent to holding someone accountable. The text does not resolve whether Section 16 reaches writ proceedings. The law says the other ECs cannot be removed from office except on the CEC's recommendation.
The Act builds accountability inward through Section 18. The Commission may regulate its business, allocation of work and is to transact business unanimously, and follows the majority view if difference exists. The process does not make any individual answerable for the motive behind an act. On 5 October 2026, the Supreme Court issued notice to the Centre, the Election Commission and the CEC on a PIL alleging that the CEC took decisions unilaterally and projected them as decisions of the three-member Commission in the Special Intensive Revision of electoral rolls. The bench described the interpretation of Section 18 as the central issue and whether its mandate had been followed.
The structural framework of Section 18 considers an office as a collective body. Section 16, however, protects not only acts done in the discharge of official duty but also “purporting to act” in that discharge. If a single member presented an individual decision as the Commission's own, those words could arguably extend the protection to the very conduct Section 18 exists to prevent. How do we resolve this ambiguity?
Section 3(2) provides that the protection does not affect the power of the Union and State governments, the Supreme Court, the High Courts or another competent authority to take civil, criminal, departmental or other action against a judge under law. The wording was borrowed but not the safety valve. The protection was not originally added in the bill introduced in the Rajya Sabha but added through the formal government amendment during parliamentary consideration in 2023 Act.
Indian Statutory framework exists for public servants under section 218 of the Bharatiya Nagarik Suraksha Sanhita and Section 19 of the Prevention of Corruption Act, 1988 which lays down prior sanctions' requirement. Section 16 makes no such severance. In T.N Seshan v. Union of India, the role of CEC is not higher than that of other ECs and in absence of unanimity, the decision of the majority shall prevail. Independence of the commission is upheld when it is collective and unanimous decision. The protection should not extend to an individual's act. Therefore, Section 16 should be read down to office and not officeholders.
READING DOWN SECTION 16: A MIDDLE PATH
The Purpose behind Section 16 is to uphold the independence of commission, which is legitimate. The problem lies in the breadth of the provision which can be resolved through reading down the provision within the constitutional framework.
1. The protection should extend to an act done in good faith by the officeholder. It does not apply to acts which fall outside the framework.
2. The act should have a reasonable nexus to the duty of the commission. In Matajog Dobey v. H.C Bhari, there must be a reasonable connection between the act complained of and the discharge of official duty by the accused public servant.
3. Section 18 says that the commission is a collective body. Therefore, the protection should extend to the decision of the commission as a whole and not to the individual decision presented as the commission's decision. In T.N Seshan v. Union of India, Election commission is a multi-member commission where the role of CEC as a chairman is only functionary, and not higher to other ECs. The decision must be unanimous.
4. In order to preserve and uphold the independence of commission, any complaints against the decision of commission should be proceeded only after the High court finds prima facie case of bad faith and non-official duty.
The purpose of Section 16 is sound as it upholds the independence of commission. If the impunity extends to an individual's act, the purpose stops serving the independence and begins serving the officeholder. To preserve the independence, Section 16 should be read down to include Bonafide acts within official duty and other acts to be open to judicial scrutiny.
Author is a 4th year B.B.A LLB. (Hons.) student at Chanakya National Law University. Views are personal.