New Delhi: The Supreme Court on Wednesday agreed to hear petitions filed by Rashtriya Janata Dal (RJD) MP Manoj Jha and activist Arun Agrawal challenging the constitutional validity of a provision granting immunity from prosecution to the Chief Election Commissioner (CEC) and other Election Commissioners.
A bench comprising Chief Justice Surya Kant and Justices Joymalya Bagchi and V Mohana issued notice to the Union government and sought its response within four weeks.
The bench told advocate Fauzia Shakil, appearing for Jha, and advocate Neha Rathi, representing Agrawal, that the petitions would be tagged with another plea pending before the court on the same issue.
The matter has been listed for hearing on 18 December.
Jha's 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 anyone who is or was the CEC or an Election Commissioner for acts, words or actions carried out, or purportedly carried out, in the discharge of official duties.
Section 16 states: "Notwithstanding anything contained in any other law for the time being in force, no court shall entertain or continue any civil or criminal proceedings against any person who is or was a Chief Election Commissioner or an Election Commissioner 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 duty or function".
The RJD MP argued that the provision grants unelected officials protection wider than that available to the President, members of Parliament and judges of the Supreme Court and high courts.
"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," Jha's petition said.
He argued that a former Election Commissioner could remain immune from prosecution even after leaving office, whereas the President can face prosecution for a crime after the end of the term.
"A Member of Parliament who takes a bribe to vote can be tried, but an Election Commissioner who takes a bribe while 'purporting' to act in office arguably cannot. A sitting judge of this court can be prosecuted with sanction, yet a retired election commissioner cannot be prosecuted with or without it. The Constitution places no functionary above the law; however, Section 16 of the CEC does," the plea said.
Jha also contended that Parliament cannot achieve through ordinary legislation what would require a constitutional amendment.
He referred to Article 361, which provides protection to the President and Governors, and Articles 105 and 194, which deal with the privileges and immunities of legislators. Article 324, which governs the Election Commission, does not provide similar protection from prosecution, he argued.
"The framers gave the Chief Election Commissioner security of tenure, i.e., removal only in the manner of a Supreme Court Judge as per Article 324(5); however, they never intended or gave immunity from prosecution," the petition said.
In his petition, Agrawal argued that Section 16 bars prosecution for a wide range of alleged offences, including corruption, forgery and other serious crimes.
"The term 'is or was' provides for lifelong immunity, 'purporting to act' covers acts that may be outside lawful authority but is projected as an official act and most importantly does not contain any good faith condition," his plea said.
He described the provision as "unconstitutional and arbitrary", arguing that it wrongly equates the independence of the Election Commission with freedom from the law and places its officials beyond judicial scrutiny.
Agrawal said the Constitution protects the independence and functioning of constitutional bodies through safeguards such as security of tenure and protection against arbitrary removal by the government.
"Hence blanket protection from legal proceedings conferred by Section 16 of the 2023 Act to secure the object of independence is bad in law and has no nexus to the object of safeguarding the independence of the Election Commission," his plea said.
The petition further argued that the objective of protecting Election Commissioners from vexatious proceedings could be achieved through less restrictive measures, including safeguards against frivolous complaints and prior judicial scrutiny.
"Granting blanket immunity is therefore excessive and goes beyond what is necessary to protect the independence of the Election Commission. The said section takes away every civil and criminal remedy against the CEC and ECs for their acts," it said.
Agrawal also argued that the provision could leave voters, candidates and citizens without legal remedies in cases involving alleged wrongful deletion of names from electoral rolls, mala fide actions or corruption within the Election Commission.