The Supreme Court on Monday agreed to examine a constitutional challenge to the law granting lifelong immunity from criminal prosecution to the Chief Election Commissioner (CEC) and election commissioners, even as it declined to stay the enactment. The law, critics argue, provides unprecedented protection to the top election officials, raising questions about accountability and the balance of powers in India’s electoral framework.

A bench headed by Chief Justice of India Surya Kant, along with Justice Joymalya Bagchi, issued notices to the Centre and the Election Commission of India (ECI) while considering a public interest litigation (PIL) filed by the non-profit organisation Lok Prahari. The matter has been tentatively scheduled for hearing in March.

The PIL, filed by the founder of Lok Prahari, SN Shukla, specifically challenges Section 16 of The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which provides complete immunity from any criminal proceedings for acts or decisions undertaken in the discharge of official duties. Shukla highlighted that such a provision is unprecedented. “This kind of life-long immunity to CEC and ECs is unprecedented. The Constitution does not grant such protection even to the President, Prime Minister, or judges,” he told the court.

The petition alleges that the immunity undermines accountability mechanisms and places election officials above the law, potentially creating conditions for arbitrary decision-making. While the Election Commission is mandated to be an independent constitutional authority responsible for ensuring free and fair elections, Shukla argued that no officer should enjoy permanent legal immunity simply by virtue of their position.

The bench observed that the PIL raises fundamental constitutional questions. Justice Bagchi remarked, “A provision of law cannot be stayed like this. You have not shown how this law will impact you personally. This is a public interest litigation. We will examine whether this kind of immunity can be granted based on our constitutional scheme.” The court’s remarks indicate that it will scrutinise the compatibility of the law with Articles 14 and 324(5) of the Constitution, which guarantee equality before the law and outline the powers and responsibilities of the Election Commission.

Shukla also highlighted procedural irregularities in the passage of the 2023 Act. He noted that the immunity clause was not part of the original bill introduced in Parliament and was inserted at the last minute by the government. This, he argued, was a deliberate attempt to shield top election officials from scrutiny at a time when the office of the Chief Election Commissioner and the Election Commission of India has come under heightened public and political scrutiny.

In recent years, the ECI has faced criticism from opposition parties over alleged irregularities in the conduct of elections and in administrative exercises such as the special intensive revision (SIR) of electoral rolls. While no concrete evidence has been produced to prove intentional misconduct, political parties have raised concerns that the SIR and other measures could potentially disenfranchise certain groups of voters. The law granting blanket immunity, according to Shukla, removes any legal recourse for challenging perceived malpractices and diminishes the transparency that the constitutional framework demands.

The PIL further contends that Section 16 creates an unequal classification by granting protection exclusively to election officials, thereby violating the principle of equality under Article 14. It argues that no other constitutional office, including the President, Prime Minister, or judges of higher courts, enjoys such sweeping lifelong immunity from prosecution. “This provision is beyond the competence of Parliament and also violative of Articles 14 and 324(5) of the Constitution, being arbitrary and irrational,” Shukla’s petition asserts.

The challenge gains additional context from the amendments introduced in 2023 to the appointment process of the CEC and other election commissioners. Following a directive by a Constitution Bench of the Supreme Court, a committee was mandated to recommend names for these positions, comprising the Prime Minister, Leader of Opposition, and Chief Justice of India, as a measure to enhance transparency and fairness. However, the 2023 Act replaced the Chief Justice’s nominee on this committee with a Union minister, a decision that is being separately challenged before the apex court. The PIL argues that the immunity provision, coupled with the altered selection process, consolidates power in a manner inconsistent with the constitutional mandate for independent and impartial electoral oversight.

During Monday’s proceedings, the court clarified that it was not inclined to stay the law immediately, noting that such a move requires demonstrating a specific and immediate impact on the petitioner. However, by issuing notices to the Centre and the Election Commission, the court signalled its intent to examine the broader constitutional validity of the provision.

The case is likely to trigger a detailed discussion on the balance between independence and accountability in India’s electoral institutions. Supporters of the immunity provision may argue that it protects election officials from frivolous litigation and political pressure, allowing them to discharge their duties without fear of harassment. Critics, however, contend that blanket, life-long immunity removes any legal deterrent against abuse of power and reduces the transparency of the ECI in an era when the conduct of elections and electoral rolls has become increasingly politicised.

The Supreme Court’s review of the provision will also examine whether Parliament acted within its legislative competence in granting immunity, and whether such a law is consistent with the constitutional principle that no citizen is above the law. Legal analysts suggest that the outcome of this case could have far-reaching implications for the functioning of independent constitutional bodies in India, not just the Election Commission but other regulatory and statutory authorities where similar powers may exist.

Shukla’s petition seeks a declaration from the court that Section 16 of the 2023 Act is unconstitutional and should be struck down. If successful, the decision would restore the possibility of criminal accountability for CEC and other election commissioners, ensuring that the highest election authority remains answerable under the law while continuing to enjoy necessary independence for carrying out its functions.

As the case progresses, it is expected to spark widespread debate over the delicate balance between protecting constitutional independence and ensuring legal accountability, especially in institutions tasked with safeguarding the democratic process. The apex court’s eventual ruling could redefine the legal landscape governing election commissioners and serve as a precedent for assessing immunity provisions in other high offices in India.

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