Supreme Court seeks Centre, EC reply on plea against immunity for election commissioners
New Delhi: The Supreme Court has issued notice on a petition by the Association for Democratic Reforms (ADR) challenging the legal protection given to the Chief Election Commissioner (CEC) and Election Commissioners for acts done in the course of their official duties.
A bench of Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana asked the Union government and the Election Commission to respond. The petition challenges 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.
The provision bars courts from entertaining or continuing civil or criminal proceedings against any serving or former CEC or Election Commissioner for anything done, said or purportedly done in discharge of official functions.
Appearing for ADR, Senior Advocate Gopal Sankaranarayanan argued that the clause violates Articles 14 and 21 and the basic structure of the Constitution. The petition, filed through Advocate-on-Record Rani Mishra, asks the court to declare Section 16 void and to revive proceedings against present and past commissioners that ended once the provision came into force.
ADR argues that the immunity is lifelong, is not tied to good faith, has no sanction mechanism and carries no saving clause. It says no other constitutional functionary, including the President, Governors or judges, enjoys comparable protection after leaving office, and that the classification has no intelligible basis. Citing Subramanian Swamy v. CBI, it contends that shielding officials from inquiry because of their status is impermissible under Article 14.
The petition also questions how the clause was enacted. It says Section 16 was not in the original Bill and was added through an official amendment circulated on 11 December 2023. It was disclosed to the Rajya Sabha the next day and, according to the petition, passed without debate while the motion to send the Bill to a Select Committee was negatived. ADR says the Lok Sabha passed the Bill on 21 December 2023 without amendment and without answering the sole objection to the immunity, even as a large number of Opposition MPs were under suspension. It adds that the Constitution already guaranteed the commissioners’ independence between 1950 and 2023, so the provision was unnecessary.
The Court tagged the plea with a similar petition by the NGO Lok Prahari, filed in November 2025. That petition has seen little progress, with neither the Centre nor the Election Commission filing a response, according to the petitioner, though it is expected to be heard later this month.
The immunity has also come up in a separate hearing. On 5 October, the same bench remarked, during petitions over alleged unilateral decisions by CEC Gyanesh Kumar in the Special Intensive Revision of electoral rolls, that Section 16 protection is not available even to judges.
with inputs from PTI
