Supreme Court to examine immunity for CEC & ECs after PIL flags 'law unto itself' risk

NEW DELHI: Supreme Court has agreed to test the constitutional validity of a law giving lifelong immunity to the Chief Election Commissioner and election commissioners from civil and criminal prosecution after a PIL alleged it would make the Election Commission a law unto itself, reports Dhananjay Mahapatra.

After hearing arguments from S N Shukla for NGO 'Lok Prahari', a bench of CJI Surya Kant and Joymalya Bagchi issued notices to the Union govt and EC, and sought their responses. "We will examine whether it is constitutionally permissible to give CEC and ECs (election commissioners) such immunity from prosecution," the bench said Monday.

Present provision could jeopardise free and fair elections, NGO tells SC
NGO ‘Lok Prahari’ challenged Section 16 of CEC and Other ECs (Appointment, Conditions of Service and Term of Office) Act, 2023, which provided that “...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 NGO’s S N Shukla said Supreme Court in the M S Gill case, while giving Election Commission independence and autonomy to conduct elections, had ruled that it should not make EC a law unto itself. The present provision would enable the CEC and election commissioners to act in an unaccountable manner and could jeopardise free and fair elections, which is the basic requirement of a democracy. The NGO alleged that Section 16 was not part of the original bill tabled in Parliament in Aug, 2023 and was surreptitiously introduced “as an afterthought in the last-minute amendment to the bill at the time of debate on the bill in Dec, 2023 without giving any valid reason and adequate justification in support of it”.

Leader of opposition in Lok Sabha, Rahul Gandhi, had recently targeted the CEC and election commissioners by saying if Congress and its allies came to office at Centre, it would disband this immunity and change the law retrospectively to hold them accountable for any past wrongdoings in the conduct of elections.

The NGO said Section 16 is against the settled law that no one is above the law, and pointed out govt gave no reason for hurried inclusion of immunity clause for CEC and election commissioners. The petitioner claimed that such immunity is not available to the President, governors or judges. The NGO alleged the offending clause was not discussed during the debate on the bill and that “the amendment was put to vote in a rushed hush hush manner”. The petitioner said, “Evidently, the approval of the House on the said amendment was obtained and given without application of mind.” It said, “The blanket permanent immunity from all civil or criminal proceedings against any present or former CEC or election commissioners is not only against the constitutional scheme and the intentions of the framers of the Constitution.”
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