CEC Gyanesh Kumar’s legal immunity makes him the most powerful constitutional authority

One of the major demands of the Cockroach Janta Party (CJP) in its protest against Chief Election Commissioner Gyanesh Kumar is to initiate criminal proceedings against him for mass disenfranchisement of citizens through the Special Intensive Revision (SIR). However, there is a catch. As per the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, the CEC and ECs enjoy legal immunity for all actions performed in their official capacity. 

When the Bharatiya Janata Party (BJP) government introduced the Bill in the Parliament in December 2023, the entire focus was on the change in the selection process, which gave the ruling front an upper hand in the appointment of the CEC and ECs, thus eroding their independent stature. However, a clause which was not part of the original bill shared among the members had made its way into the Act. While presenting the Bill in Rajya Sabha on December 12, 2023, Union Law Minister Arjun Ram Meghwal proposed an amendment to insert a new clause 15A, which dealt with a crucial immunity to the ECs and CECs. The amendment, which was presented at the end of the debate, was passed without any discussion, and the Chairman agreed to include it as Clause 16. 

As per Section 16 of the Act, ‘notwithstanding anything contained in any other law for the time being in force, 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.

Meaning, Section 16 protects the Chief Election Commissioner and Election Commissioners from court cases for actions, decisions or statements made while carrying out their official duties, as long as the law remains in force.

While hearing a petition against SIR, the Supreme Court on Monday, October 5, had orally observed that the legal protection granted to the Chief Election Commissioner and the Election Commissioners may be broader than the protection available even to constitutional court judges. A public interest litigation, filed in November 2025, challenging the lifelong immunity to the CEC and ECs, is under consideration by the Supreme Court. 

Supreme Court lawyer MR Abhilash said that the clause has specifically mentioned that the immunity is only for any act performed as part of the official duty of the Election Commissioner. Abhilash said that those holding the post of CEC or EC can be prosecuted for other kinds of offences.

Social activist Anjali Bharadwaj, however, said that Section 16 of the Act gives a strong blanket immunity to the ECs and the CECs. She said that the immunity given to ECs is wider than that enjoyed by the judges under the Judges Protection Act 1985. Though Section 3(1) of the Judges Protection Act offers legal immunity for judges in connection with their actions discharged as part of official duty, section 3(2) says that ‘protection in Section 3(1) does not affect the power of the Union and state governments, Supreme Court, High Court or another competent authority to take civil, criminal, departmental or other action against a judge under law’. 

According to Abhilash, though an exception is not explicitly mentioned in the 2023 Act, Section 16 was clear that the immunity was only related to discharge of official duty. 

Anjali said that such immunity prevents constitutional functionaries from being accountable in a democracy. “The EC’s role is to conduct free and fair elections. If they perform anything illegal or unconstitutional, they could use this blanket immunity,” she said. Anjali also said that the intention of the 2023 Act itself was questionable and it violated the spirit of democracy. 

“I had filed an RTI asking who had taken the decision to undertake the SIR. The response said the commission had not taken any decision on nationwide SIR. This casts a huge doubt on the functioning of the ECI. There should be an investigation into every decision taken by the CEC during his term. No law should make constitutional functionaries unaccountable,” she said. 

Legal scholar Alok Prasanna said that the 2023 Act gave Election Commissions a judge-like protection. He said that every government servant has a base level of immunity under Section 197 of the Criminal Procedure Code (CrPC) (later replaced by Section 218 of Bharatiya Nagarik Suraksha Sanhita). “Under this, you need the sanction from the government concerned to initiate criminal proceedings against the government servant. But what the ECI has now got is a judge-like protection. Fundamentally, the Election Commission is an administrative body. Why this extra level of immunity for, say, deciding to do an SIR? It could have been done with possible criminal intent also. It’s all speculation, but it’s possible that there is malice and intent. But no case can be filed, as it was part of the official duty,” he said. 

Meanwhile, there is little progress in the PIL filed by Uttar Pradesh-based NGO Lok Prahari in the Supreme Court against the legal immunity to the ECI, though 11 months have passed. Despite a bench led by Chief Justice of India Surya Kant issuing notices to the Union government and the ECI in January, there has been no response till now, as per a report. A bench of CJI Surya Kant and Justices Joymalya Bagchi and V Mohana is expected to hear the case this month.