The Supreme Court of India has sought responses from the Central Government and the Election Commission of India (ECI) on a petition challenging the sweeping legal immunity granted to the Chief Election Commissioner (CEC) and other Election Commissioners under the 2023 law.
A three-judge bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana issued notice on the public interest litigation 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.
The petition was filed by activist and lawyer Arun Kumar Agrawal, who has argued that the provision grants Election Commissioners excessive legal protection, even in cases involving alleged misconduct, actions beyond their official authority or decisions not taken in good faith.
What Does Section 16 of the Act Provide?
Section 16 protects serving and former Chief Election Commissioners and Election Commissioners from civil and criminal proceedings for acts, statements or decisions made while performing, or purportedly performing, their official duties.
The petitioner contends that such blanket immunity deprives citizens of legal remedies against alleged wrongdoing by the country’s top election officials.
The plea argues that safeguarding the independence of the Election Commission should not mean placing its members beyond legal accountability.
Agrawal has urged the Supreme Court to declare Section 16 unconstitutional, arguing that the provision offers protection without adequate exceptions for actions allegedly undertaken in bad faith or beyond the scope of official authority.
Supreme Court Raises Questions Over SIR Exercise
The development came as the Supreme Court was also hearing a separate batch of petitions challenging the Election Commission’s Special Intensive Revision (SIR) of electoral rolls.
During the proceedings, the bench questioned the manner in which the revision exercise was being conducted and asked whether its implementation risked harassing or intimidating voters.
The judges also questioned the urgency of conducting the exercise in Delhi when no immediate election was scheduled.
The court observed that the Election Commission should avoid imposing rigid deadlines and ensure that voters are not unnecessarily deprived of opportunities to submit their enumeration forms.
The bench also questioned why individuals whose names had appeared on earlier electoral rolls but were missing from the draft rolls were being asked to submit Form 6 again.
“Can you punish a voter for their negligence by permanently taking away their right to vote?” Justice Joymalya Bagchi asked during the hearing.
Physical Lists of Deleted Voters in Local Languages
The Supreme Court directed the Election Commission to ensure that physical lists of deleted voters are displayed at the block level in local languages to make the information accessible to the public.
The bench also sought to reassure voters that there was no need to panic, as the issues concerning the SIR exercise were being examined by the court.
In response, the Election Commission informed the bench that it would consider extending the deadlines in Delhi and permitting late submission of enumeration forms.
Next Hearing on November 19
The Supreme Court clarified that deletion of a person’s name during the SIR exercise or missing a particular deadline does not permanently prevent that individual from being included in the electoral roll.
Voters can seek corrections and inclusion in the electoral rolls until the last date for filing nominations in the relevant election.
The next hearing in the SIR-related proceedings has been scheduled for November 19.
The constitutional challenge to Section 16 raises a wider question about the balance between protecting the independence of the Election Commission and ensuring accountability of its constitutional functionaries. The Supreme Court is yet to decide the validity of the immunity provision.