Supreme Court Questions Legal Protection Given to Election Commissioners Under 2023 Law

The Supreme Court on October 5 questioned whether the legal protection available to the Chief Election Commissioner and Election Commissioners under the 2023 law is broader than the protection available to judges.

A three-judge bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V. Mohana was hearing petitions challenging decisions allegedly taken unilaterally by Chief Election Commissioner Gyanesh Kumar in connection with the Special Intensive Revision of electoral rolls.

What the Court discussed

During the hearing, senior advocate Vikas Singh argued that the Chief Election Commissioner and other Election Commissioners have been given unusually broad statutory protection under the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

Section 16 of the 2023 Act provides protection from civil or criminal proceedings for acts done in the discharge or purported discharge of official functions, and the protection continues even after an Election Commissioner leaves office.

Justice Bagchi questioned the breadth of that protection during the hearing, observing that it appeared to be protection that may not extend even to judges. The exchange was part of the oral arguments and should not be treated as a final finding on the constitutional validity or scope of Section 16.

How the protection compares with judges

The Judges (Protection) Act, 1985 similarly protects judges of the Supreme Court and High Courts from civil or criminal proceedings for acts done while acting or purporting to act in the discharge of judicial duties.

However, Section 3(2) of that law expressly preserves the authority of the government and constitutional courts to take action against a judge under applicable law. The petitioners have argued that the CEC Act does not contain an equivalent express saving provision.

What happens next

The Supreme Court issued notice to the Union government, the Election Commission of India, the Chief Election Commissioner and the Election Commissioners on the petitions.

The observations reported from the hearing are oral remarks made during proceedings. The Court’s final determination on the validity and scope of the statutory protection will come through its subsequent orders or judgment.

Source

LiveLaw: Election Commissioners Enjoy Greater Legal Immunity Than Even Judges, Remarks Supreme Court