‘This protection is perhaps only for the President. It does not apply even to judges,’ the top court had commented last month

The Supreme Court on Wednesday issued notices to the Centre and the Election Commission on a PIL filed by RJD MP Manoj Jha and activist Arun Agrawal challenging the validity of a law granting blanket immunity from prosecution to the Chief Election Commissioner and the Election Commissioners.

Asking the Centre and the poll panel to respond to the PIL in four weeks, a Bench of Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice V Mohana tagged it with two other petitions filed by NGO Lok Prahari and the Association for Democratic Reforms pending before the top court.

The petitioners urged the top court to declare unconstitutional Section 16 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, that granted them immunity and excluded judicial review of their acts of omission and commission in their official capacity.

“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,” Section 16 read.

Commenting on the immunity given to the CEC and ECs under the 2023 law, the top court had on October 5 said, “This protection is perhaps only for the President. It does not apply even to judges.”

"No other provision in the Constitution of India or any statute grants immunity that is at once lifelong, unconditioned by good faith, free of any sanction mechanism, and without a saving clause,” contended the ADR.

The impugned law remains operational as the top court has chosen not to stay it. Now, it will examine if this kind of immunity could be granted to a constitutional functionary in terms of the constitutional scheme.

"In the case of MS Gill, the Constitution Bench had ruled that Article 324 does not exalt the EC to a law unto itself. The impugned provision does precisely that by giving a lifelong, unprecedented immunity to CEC and the EC, which the makers of the Constitution did not grant even to the President, and the governors,” Lok Prahari had submitted.