The Election Commission of India has been in the news over the past few months, particularly over questions concerning the appointment of the Chief Election Commissioner (CEC) and the other election commissioners (ECs), as well as their internal decision-making. Amidst these discussions, attention has also turned to the statutory immunity granted to the commissioners, particularly, its scope, legislative intent and whether such a protection is warranted in the first place.
While hearing a batch of petitions concerning the ECI, Justice Joymalya Bagchi added another dimension to this discourse by remarking that even judges do not enjoy the same immunity as election commissioners. However, the legal position is more nuanced and the nature of the ECI’s functions provides good reasons for affording its commissioners comparable protection.
Section 16 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 grants protection to the commissioners against judicial proceedings in connection with the discharge of their official functions. The provision begins with a non-obstante clause, giving it an overriding effect over other laws.
A bare reading of the text highlights three key aspects of the provision. First, it extends to both serving and former commissioners. Second, it covers civil as well as criminal proceedings, including proceedings already pending before courts. Third, the protection applies to any act, thing or word committed, done or spoken while acting, or purporting to act, in the discharge of official duties or functions. Thus, the immunity is not absolute and proceedings for conduct unconnected with official functions may be initiated.
The earlier Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 contained no immunity. Interestingly, the 2023 Bill, as originally introduced in Parliament, also contained no such provision. It was subsequently inserted through an amendment during its consideration in the Rajya Sabha.
On the floor of Parliament, the scope and implications of the provision was barely discussed. The focus primarily remained on the mechanism for appointing commissioners. However, the Minister of State for Law and Justice briefly explained that the provision was prompted by an incident in Mahbubnagar, Telangana, where a trial court judge had issued a notice to the CEC and other election officials. He was probably referring to the order passed in July 2023 directing the police to register an FIR against the then CEC Rajiv Kumar and others in connection with allegations concerning an election affidavit filed by a Telangana minister. Hence, the Union’s sole justification was to protect the commissioners against such proceedings in the future.
While this explains the immediate reason for introducing the provision, it does not explain the justification behind the breadth of the immunity. For that, it is useful to examine the law on which Section 16 appears to have been modelled: the Judges (Protection) Act, 1985.
Judicial immunity in India dates back to the Judicial Officers Protection Act, 1850, which protected judges from civil proceedings for acts done in discharge of official duty. Parliament expanded this protection through the Judges (Protection) Act, 1985. Section 3(1) extended the immunity to both civil and criminal proceedings, serving and former judges, and acts performed or purportedly performed in the discharge of official or judicial duties.
Two features of the 1985 Act are particularly relevant. First, its protection is not confined to judges of the Supreme Court and High Courts. Section 2 defines a judge to include persons legally empowered to give definitive judgments in judicial proceedings. Second, it covers both official and judicial duties. The legislative intent for covering both duties was explained by then Minister of State for Law and Justice HR Bhardwaj, who remarked that judges also perform administrative functions - such as preparing confidential reports concerning other judges or making recommendations relating to judicial appointments - for which they require protection from litigation. Bharadwaj had remarked:
“Every Judge has to do both the judicial and administrative duties. Even functioning on the administrative side you have to be protected. This is the question which has been gone into in all these issues and when he is functioning administratively, he is not functioning judicially. But he deserves to be protected.”
Although the 1985 Act uses language similar to the 2023 Act, there is a key difference. Judicial immunity under the former is subject to Section 3(2), which preserves the powers of the Central and state governments, the Supreme Court, High Courts and other competent authorities to take civil, criminal, departmental or other action against judges, as permitted by law. In a recent judgment, the Supreme Court explained that this provision is important because the definition of a judge also extends to persons exercising judicial and quasi-judicial powers in tribunals and other bodies, who may be subject to different disciplinary mechanisms.
However, the position of Supreme Court and High Court judges is different. Like the CEC, they may be removed through the constitutional process akin to impeachment. Therefore, if we compare the statutory protection afforded to judges of constitutional courts under the 1985 Act with that of the Commissioners under the 2023 Act, the scope of their immunity is substantially similar. The position changes if we account for the in-house inquiry mechanism developed by the Supreme Court to address instances of judicial misconduct that may not warrant removal. The Court has subsequently clarified that such inquiries are accommodated within Section 3(2). No such additional mechanism has been developed for election commissioners.
Keeping aside the immediate political controversy and questions of public perception surrounding the ECI, there are sound reasons for granting commissioners an immunity similar to that enjoyed by judges of constitutional courts.
First, the Constitution itself recognises the importance of the ECI’s independence. Article 324(5) provides protections similar to those available to a judge of the Supreme Court, both in terms of removal and the prohibition against varying the CEC’s conditions of service to their disadvantage after appointment. Further, the other election commissioners cannot be removed except on the recommendation of the CEC. While these safeguards do not automatically justify identical immunity, they demonstrate the importance attached to protecting the commissioners from executive interference.
Second, the Commission performs both administrative and quasi-judicial functions. For instance, in disputes concerning the allotment of party symbols, it performs an adjudicative role. At the same time, it conducts elections which involve taking administrative decisions with significant consequences for both the government and opposition parties.
Third, unlike several other constitutional authorities, the ECI oversees a process through which governments are formed and removed. Its decisions may invite legal proceedings from parties dissatisfied with their outcomes, including those in power. The Mahbubnagar incident, which prompted the introduction of Section 16, illustrates the concern that commissioners could face proceedings arising from the discharge of their official functions. Hence, some degree of protection is justified to shield them from political vendetta.
However, the need for protection should not be confused with the absence of any accountability. The experience of the judiciary is instructive here. Although the Constitution prescribed a stringent procedure for removing judges of constitutional courts, the Supreme Court subsequently developed an in-house inquiry mechanism, recognising that not every instance of misconduct warrants removal, but some may nevertheless warrant a sanction. A comparable mechanism for examining allegations against commissioners must be developed, particularly where the conduct complained of does not justify invoking the constitutional process of removal. Such a mechanism should ideally emerge through a law enacted after detailed deliberation and scrutiny in Parliament.
Importantly, the grant of immunity rests on the premise that the commissioners will act independently and without favour towards either the government or the opposition. For this, it is imperative that the procedure for their appointment must be fair and free from executive dominance.
Swapnil Tripathi leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy.
Views are personal.