The debate over immunity to CEC, ECs

The story so far:

The Supreme Court has recently issued notices to the Centre on a petition filed by the Association for Democratic Reforms (ADR) challenging the lifelong immunity granted to the Chief Election Commissioner and Election Commissioners (CEC and EC) for actions taken in discharge of official duties.

What is equality before the law?

Equality is a fundamental right and part of basic structure of our Constitution. Article 14 guarantees that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Equality before law is a component of the concept of ‘Rule of Law’ propounded by British jurist A.V. Dicey. It means that there will be absence of any special privileges in favour of any person; everyone is subject to same set of laws; and there will be no person above the law, irrespective of their status in the society. Equal protection of the law is an American concept, which implies that there will be equality of treatment under equal circumstances, both in privileges conferred and liabilities imposed by the laws.

What are constitutional immunities?

The Constitution does provide some immunities/privileges to certain offices. Article 361 provides certain immunities to the President and Governors. It states that there shall be no criminal proceedings and no process for arrest or imprisonment of President or Governor during their term of office. Even civil proceedings against President or Governor cannot be initiated except until expiration of 2 months’ notice. These privileges were available to Governor General and Governors during the British rule. They have continued to exist under our Constitution to maintain the dignity of these high offices.

Article 105 and 194 provides the privileges for members of Parliament and State legislatures, which includes freedom of speech and vote. The Constitution also provides that till Parliament enacts a law to codify the privileges, the Houses and members will continue to enjoy the privileges that were enjoyed by the British House of Commons before the commencement of the Constitution. The Parliament has not enacted any law to codify privileges till date.

Diplomats and ambassadors of other nations enjoy immunity from civil and criminal jurisdiction under the Vienna convention. This is an international treaty that is applicable in more than 190 countries on a reciprocal basis.

What immunity do the CEC and ECs have?

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Terms of Office) Act, 2023 (CEC & EC Act) passed in December 2023 contains Section 16 that provides that no court shall entertain or continue any civil or criminal proceedings against any current or former CEC or EC for actions taken or purported to be taken in discharge of official duties.

Why should this provision be removed?

The immunity from arrest and criminal proceedings for the President and Governors is a colonial relic that has continued in our Constitution. It must however be noted that this immunity is only during their term of office. While Parliamentary privileges are an exception to equality, they are largely confined to actions inside the Houses of the legislature and to the period when the Houses are in session. Diplomatic immunity is based on functional necessity and reciprocity, in order to facilitate the smooth functioning of diplomatic relations.

The provision granting life-long and unconditional immunity to the CEC or ECs was not part of the original Bill that was introduced in the Parliament. Hence, there is no rationale provided for the inclusion of this clause in the ‘Statement of Objects and Reasons’ submitted along with the Bill at the time of introduction. This clause was added as an amendment on the day the Bill was passed in Rajya Sabha that was subsequently cleared by Lok Sabha and assented to by the President.

The Union Law Minister, while introducing this amendment had said that it was brought in to enable the CEC and ECs to discharge their functions in an unhindered and independent manner.

Equal protection of the law under Article 14 does provide for creation of separate classifications for the application of laws. However, the classification for equal protection of the laws should not be arbitrary or irrational. It must be based on intelligible and reasonable distinction. Further, the classification must have reasonable relation to the objective or purpose of the legislation.

There are various constitutional and statutory authorities who are required to discharge their functions in an independent manner. It includes judges, Comptroller and Auditor General, Public Service Commission Chairpersons and members, Lokpal and Lokayuktas, and Information Commissioners. None of these authorities enjoy such life-long and unconditional immunity for their official actions. The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 which was the earlier law that governed the terms of office of the CEC and ECs did not contain such a provision. In view of these aspects, this provision of blanket immunity under the CEC & EC Act must not remain in the statute books.

(Rangarajan R. is a former IAS officer and author of ‘Courseware on Polity Simplified’. He currently trains at Officers IAS Academy. Views expressed are personal.)