Why in News?

The Supreme Court has issued a notice to the Centre on a petition filed by the Association for Democratic Reforms (ADR) challenging Section 16 of the Chief Election Commissioner and Other Election Commissioners Act, 2023, which grants immunity for official actions even after retirement.

What is Equality Before Law?

Article 14 guarantees equality before the law and equal protection of the laws.

• Equality before law: No person enjoys special privileges; everyone is subject to the ordinary law.

• Equal protection of laws: People in similar circumstances must receive equal treatment.

• Equality before law is part of the Basic Structure Doctrine and reflects the Rule of Law propounded by A.V. Dicey.

What are Constitutional Immunities?

• Article 361: Provides certain immunities to the President and Governors during their term of office, including protection from criminal proceedings.

• Articles 105 and 194: Provide privileges to Members of Parliament and State Legislatures, including freedom of speech within the legislature, subject to constitutional provisions.

• Diplomatic Immunity: Protects diplomats under international law to facilitate diplomatic relations.

What Immunity Do CEC and ECs Enjoy?

Section 16 of the CEC and Other ECs Act, 2023 provides that courts shall not entertain or continue civil or criminal proceedings against a current or former CEC or Election Commissioner for acts done or purportedly done in the discharge of official duties.

Why Is This Provision Controversial?

• Lifetime immunity: Unlike the immunity of the President and Governors, it continues after retirement.

• Equality concerns: It raises questions under Article 14 regarding equality before law.

• Lack of justification: The provision was introduced through an amendment during the Bill’s passage in Parliament.

• Unequal treatment: Other independent constitutional and statutory authorities, such as judges, the CAG and Public Service Commission members, do not enjoy similar blanket immunity.

• Accountability concerns: It may weaken legal accountability for official actions.

  

  Chief Election Commissioner and Other Election Commissioners Act, 2023

  What is the Act?

  The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 regulates the appointment, service conditions, tenure and functioning of the Chief Election Commissioner (CEC) and Election Commissioners (ECs). It came into force on 2 February 2024.

  Key Provisions:

  1. Composition:

  – The Election Commission consists of the CEC and such number of other ECs as the President may determine.

  2. Appointment (Section 4)

  – The President appoints the CEC and ECs on the recommendation of the Selection Committee.

  3. Selection Committee (Section 7)

  • Prime Minister — Chairperson.

  • Leader of Opposition in the Lok Sabha — Member.

  • Union Cabinet Minister nominated by the Prime Minister — Member.

  4. Search Committee (Section 6):

  • Headed by the Union Minister of Law and Justice.

  • Prepares a panel of five eligible candidates for consideration by the Selection Committee.

  • The Selection Committee may consider candidates outside this panel.

  5. Qualifications (Section 5):

  • Persons of integrity with knowledge and experience in the conduct and management of elections.

  • Must be serving or have served in a position equivalent to Secretary to the Government of India.

  6. Tenure (Section 9)

  • Six years or until attaining the age of 65 years, whichever is earlier.

  • Not eligible for reappointment.

  • An EC appointed as CEC cannot have a combined tenure exceeding six years.

  7. Removal (Section 11)

  • The CEC can be removed in the same manner and on the same grounds as a Supreme Court judge.

  • Other ECs can be removed by the President on the recommendation of the CEC.

  8. Protection from Legal Proceedings (Section 16)

  – Bars courts from entertaining or continuing civil or criminal proceedings against a current or former CEC or EC for acts done or words spoken in the discharge of official duties. This provision is being challenged in the Supreme Court.

  9. Transaction of Business (Sections 17–18)

  • The Election Commission regulates its business according to the Act.

  • Decisions are taken unanimously as far as possible; differences are resolved by majority.

  Why is the Act Important?

  • Establishes a statutory framework for appointments and service conditions.

  • Seeks to provide institutional stability and protect the functioning of the Election Commission.

  • Raises concerns about the independence of appointments and the scope of legal immunity under Section 16.

What is the Way Forward?

• Ensure that legal protection does not become blanket immunity from accountability.

• Examine the provision against the principles of Article 14 and the Rule of Law.

• Protect the independence of the Election Commission while preserving appropriate legal remedies.

• Ensure that immunity, if provided, is reasonable, justified and proportionate.

Conclusion:

The independence of the Election Commission is essential for free and fair elections. However, independence must be balanced with accountability and equality before law. Legal safeguards should protect bona fide official decisions without unnecessarily placing public authorities above the law.