SC seeks Centre, EC response on law giving blanket, lifelong immunity to CEC, Election Commissioners

File photo of Chief Election Commissioner Gyanesh Kumar (C) with Election Commissioners Sukhbir Singh Sandhu (L) and Vivek Joshi (R) addressing a press conference at Vigyan Bhawan, in New Delhi.

The Supreme Court on Wednesday (November 4, 2026) sought a response from the Union government on petitions challenging the constitutionality of a specific provision in the Chief Election Commissioner-Election Commissioners’ appointment law which grants them blanket, lifelong immunity from any legal action or criminal prosecution, not only during the official tenure but even after retirement.

A Bench headed by Chief Justice of India Surya Kant issued notice to both the Centre and the Election Commission of India on petitions filed by RJD MP Manoj Jha, represented by Tanya Srivastava and advocate Arun Kumar Agrawal, represented by advocate Neha Rathi, challenging Section 16 of The Chief Election Commissioner And Other Election Commissioners (Appointment, Conditions Of Service And Term Of Office) Act, 2023.

The court listed the petitions on December 18.

The petitions said the Section was unconstitutional, went beyond the ambit of powers given to the Election Commission of India (EC) and, significantly, violated the Basic Structure of the Constitution.

“Section 16 of the Act bars jurisdiction of Constitutional courts and interferes with the power of judicial review, held to be a part of the Basic Structure of Constitution,” the petitions submitted.

Ms. Rathi submitted that a plain reading of the provision showed a bar on any court to 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”.

“A bare perusal of the text [of Section 16] discloses the width of the protection granted in so far as it bars all kinds of prosecution including corruption, forgery and other serious offences. It provides for lifelong immunity and covers acts that may be outside lawful authority,” Mr. Agrawal’s plea contended.

Section 16 further barred proceedings instituted under defamation law, contempt law and other civil or criminal liabilities for lifetime without distinguishing between mala fide and bona fide acts, all under guise of preventing frivolous complaints against the CEC.

“The object to ensure independence by taking such sweeping measures fails the test of proportionality. That every person has a right to a remedy and to a fair investigation, and access to justice is a facet of Articles 14 and 21,” the petitioners highlighted.

They said that until the enactment of the 2023 Act, the Parliament had not granted any blanket immunity to Election Commissioners.

“Despite the absence of such blanket immunity, the Election Commission has successfully conducted elections over several decades. This shows that the Commission can function effectively without granting its members blanket immunity from legal proceedings,” Ms. Rathi submitted.

The petitions noted that under Article 361 of the Constitution, the President and the Governors of States enjoy express constitutional immunity for acts done in performance of their official powers and duties.

“However, even their immunity is not absolute and Article 361 bars criminal proceedings against the President and the Governors only during the term of office and permits civil proceedings after notice. Judges of the constitutional courts also do not enjoy an absolute immunity from civil or criminal proceedings,” the petitioners submitted.