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RJD MP Manoj Kumar Jha has approached the Supreme Court challenging the constitutional validity of Section 16 of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, terming it a "fraud" on the Constitution.

Section 16 bars every Court in the country from entertaining or continuing any civil or criminal proceeding against any person who is or was a Chief Election Commissioner or Election Commissioner, for anything done "or purporting" to be done in the discharge of official duty. 

Jha has stated that Section 16 confers on unelected officials a shield/blanket immunity which is not even extended to the President, Governor, Member of Parliament, State Legislature, or any judge of the Supreme Court or the High Court, because the immunity extends for a lifetime.

This was added through an amendment in 2023, which had also removed the pro tem arrangement made by the Supreme Court in Anoop Baranwal v. Union of India(2023) for the appointment of the CEC by a committee consisting of the Prime Minister, the leader of the Opposition in the Lok Sabha (or the leader of the largest opposition party), and the Chief Justice of India. The 2023 Act had removed the CJI and added a Union Cabinet Minister nominated by the PM.

Jha's petition argues: "Parliament, by a late official amendment to an ordinary Bill, has handed the Chief Election Commissioner and the Election Commissioners a protection wider than all of them: civil and criminal, during office and for life after it, with no carve-out for corruption, mala fides or crime, and with no authority anywhere empowered to lift it."

Fraud on Constitution

Jha has stated that Section 16, added through an amendment, is a fraud on the Constitution because it was not originally provided in the Act. He has said that wherever the Constitutional framers thought fit to provide functional immunity, it has done so and that too only till the person is holding the office. Per contra, no such immunity was provided under Section 324 of the Constitution for the protection of the Election Commission.

"Section 16 nonetheless confers a constitutional-grade immunity, larger than any the Constitution grants or permits, through a simple majority statute. It does so under the label of "conditions of service" in an Act whose long title speaks only of "appointment, conditions of service and term of office" and "transaction of business". Freedom from civil and criminal liability for life is not a condition of service. It is a status above the law. A power to legislate on conditions of service under Article 324(2) and (5) cannot be stretched to place the holder of the office beyond the reach of the courts."

He has asked for a declaration that it should be held unconstitutional for violating Articles 14, 21 and 324 and the basic structure of the Constitution. Alternatively, to read down the Section so as not to bar initiation of criminal proceedings, any action by the State or the Supreme Court and the High Court.

The MP has also questioned the manner in which Section 16 was inserted. He has pointed out that Section 16 was not in the Bill that the Parliament was asked to consider. It was "slipped" in by an official amendment, one day before the Rajya Sabha voted and passed by the Lok Sabha while most of the Opposition stood suspended.

He has also said that no Statement of Objects and Reasons, no Committee and no public consultation happened.

"The amendment travelled in a bundle with others that raised the salary and status of the CEC and ECs to that of a Supreme Court Judge (replacing the Cabinet Secretary in the original Bill). The immunity clause cleverly disguised rode in with these amendments, and its only conceivable defence is "parity with Judges". But it is not parity. It copied the protective sub-section of the Judges (Protection) Act, 1985 and silently left out the sub-section that keeps Judges accountable."

Section 16 is a copy of Judges Protection Act but with life time immunity

Jha has further pointed out that Section 16 appears to be a near word-for-word copy of Section 3(1) of the Judges Protection(Act), 1985, but some clauses have been deliberately left out from the former.

He has pointed out that while the 1985 Act is a shield for judges against private harassment, while retaining that the government, the Supreme Court and the High Court retain full power to proceed civil, criminal or departmental against a sitting or former judge, no such reservation is there in Section 16.

By that, the MP has pointed out that judges remain prosecutable, but no authority can grant sanction to prosecute a CEC or EC.

"The Parliament gave the Election Commissioners an immunity that no Supreme Court Judge has ever enjoyed. The omission of sub-section (2) cannot be an accident of drafting when the rest of the section is copied verbatim."

Filed through AoR Tanya Srivastava

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