CEC & Election Commissioners Enjoy Greater Legal Immunity Than Even Judges, Remarks Supreme Court

The Supreme Court on Monday (October 5) orally observed that the legal protection granted to the Chief Election Commissioner and the Election Commissioners under the 2023 law may be broader than the protection available even to constitutional court judges, during the hearing of petitions challenging the decisions allegedly taken unilaterally by CEC Gyanesh Kumar in connection with the Special Intensive Revision (SIR) of electoral rolls.

A Bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice V Mohana was hearing the petitions.

Senior Advocate Vikas Singh, appearing for the petitioner, argued that the Chief Election Commissioner and Other Election Commissioners(Appointment, Conditions of Service and Term of Office) Act, 2023, had substantially enhanced the authority and immunity of the CEC and Election Commissioners.

As per Section 16 of the 2023 Act, CEC and Election Commissioners are protected from civil or criminal proceedings for acts done in the discharge or purported discharge of their official functions. The legal protection continues even after they have demitted office.

At this stage, Justice Bagchi made a significant observation regarding the extent of the protection.

"This protection is perhaps only for the President. It does not apply even to judges," Justice Bagchi observed.

Singh agreed with the observation and argued that the statutory scheme had placed the CEC in a position of extraordinary legal protection.

"Even the Prime Minister does not have this," Singh submitted.

He argued that the statutory framework had effectively placed the CEC "on a pedestal even higher than Supreme Court judges."

"ECI more powerful today than any other constitutional authority," Singh submitted.

The Court ultimately issued notice to the Union, ECI, CEC, ECs on the petition.

 Comparing the legal protection available to Judges and Election Commissioners

The Judges (Protection) Act 1985 extends a similar protection to the judges of the Supreme Court and the High Court by stating, in its Section 3(1), that "no Court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function." This is similar to the protection given to Election Commissioners by Section 16 of the 2023 Act.

However, Section 3(2) of the Judges (Protection) Act expressly reserves "the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge." Such a provision is absent in the CEC Act.

Thus, Section 3(2) of the Judges (Protection) Act expressly says that the protection in Section 3(1) does not affect the power of the Central Government, State Government, Supreme Court, High Court or another competent authority to take civil, criminal, departmental or other action against a judge under law. However, the CEC Act does not expressly say that the power of the competent authority to initiate action against Election Commissioners is saved.

The Supreme Court is seized of another petition which challenges the lifelong immunity granted to Election Commissioners.

Also from the hearing - Supreme Court Refuses To Suspend CEC Gyanesh Kumar Ex Parte, Issues Notice On Plea Challenging ECI Decisions

Modified Form 6 Has Not Been Approved By Supreme Court : CJI Surya Kant