Immunity of Chief Election Commissioner & Election Commissioners

The Supreme Court has agreed to examine the constitutional validity of immunity granted to the Chief Election Commissioner (CEC) and Election Commissioners under the Chief Election Commissioner and Other Election Commissioners Act, 2023.

Background of the Case

• Section 16 of the 2023 Act: States that “no Court shall entertain or continue any civil or criminal proceedings” against a person who is or was the CEC or an EC for any act, word, or decision taken while acting in discharge of official duties.
• Challenge: The plea argues this provision grants life-long immunity, even after demitting office.
• • Section 16 

Key Provision Under Challenge

• Life-long Immunity Clause: rants life-long immunity from civil and criminal proceedings to the CEC and ECs for acts performed during the discharge of their official duties.
• Nature of Immunity: The immunity is described in the plea as “unprecedented”, as it continues even after demitting office.

Arguments Against this Provision

• Violation of Constitutional Principles: The petitioner argued that Parliament cannot grant an immunity that even the Constitution framers did not provide to other constitutional authorities.
• Comparison with Judiciary: It was contended that judges of constitutional courts do not enjoy such life-long immunity, making the provision excessive and arbitrary.
• Doctrine of Equality: The plea suggests that granting blanket immunity undermines equality before law and weakens accountability of constitutional functionaries
• Misuse of Article 324(2): The petitioner contended that the government justified the law under Article 324(2), which deals only with the appointment of the CEC and ECs, and not with service conditions or immunity.
• Threat to Free and Fair Elections: The plea alleged that the provision disturbs the level playing field by giving the CEC and ECs a free hand to act for or against political parties or candidates without accountability.

Key Provisions of the Chief Election Commissioner and Other Election Commissioners Act, 2023

• Legislative update: The 2023 Act replaces the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.
• Eligibility criteria: A person to be appointed as the Chief Election Commissioner (CEC) or an Election Commissioner (EC) must have held, or be holding, a post equivalent to Secretary to the Government of India.
• Search Committee:
  • Composition: The Search Committee is headed by the Union Minister of Law and Justice and includes two members of the rank of Secretary or above.
  • Function: It prepares a panel of five eligible candidates for consideration by the Selection Committee.
• Selection Committee:
  • Composition: The Selection Committee consists of the Prime Minister (Chairperson), the Leader of Opposition in the Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister.
  • Function: It recommends suitable candidates to the President of India for appointment as the CEC or EC.
• Term of Office:
  • Tenure: The CEC and ECs hold office for six years or until attaining 65 years of age, whichever is earlier.
  • Tenure: If an Election Commissioner is elevated as CEC, the total combined tenure cannot exceed six years.
  • Reappointment: Reappointment is expressly prohibited, ensuring fixed and non-renewable tenure.
• Salary and Service Conditions: The salary and benefits of the CEC and ECs are equivalent to those of a Judge of the Supreme Court of India, ensuring status and independence.
• Resignation and Removal:
• • Resignation: The CEC or an EC may resign by submitting a written resignation to the President of India.
  • Removal of CEC: The CEC can be removed only in the manner prescribed for the removal of a Supreme Court Judge.
  • Removal of ECs: Election Commissioners can be removed only on the recommendation of the Chief Election Commissioner.
• Legal Protection: The Act provides protection from civil and criminal proceedings to the CEC and ECs for acts done or words spoken in the discharge of official duties.

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Suggestions made by various Commissions/Courts for composition of the Selection Committee

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