Immunity to CEC and ECs

Source: The Hindu

Introduction 

The Supreme Court has recently issued notice to the Centre on a petition filed by the Association for Democratic Reforms (ADR) challenging the lifelong immunity granted to the Chief Election Commissioner (CEC) and Election Commissioners (ECs) for actions taken in the discharge of their official duties. The immunity flows from Section 16 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Terms of Office) Act, 2023. The challenge raises questions about equality before law and the limits of immunities that may be conferred on constitutional functionaries. 

What is Equality Before Law? 

• Equality is a fundamental right and part of the basic structure of the Constitution. 
• Article 14 provides 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: 

• It is a component of the concept of Rule of Law propounded by the British jurist A.V. Dicey. 
• It means the absence of special privileges in favour of any person, the subjection of everyone to the same set of laws, and that no person is above the law irrespective of status. 

Equal Protection of the Laws: 

• It is an American concept, implying equality of treatment in equal circumstances, both in the privileges conferred and the liabilities imposed by law. 

What are Constitutional Immunities? 

The Constitution provides certain immunities and privileges to specific offices. 

Immunity to the President and Governors (Article 361): 

• No criminal proceedings shall be instituted or continued against the President or a Governor during their term of office. 
• No process for arrest or imprisonment shall issue against them during their term of office. 
• Civil proceedings in respect of their personal acts cannot be instituted during their term except after the expiry of two months from the delivery of notice. 
• These privileges were enjoyed by the Governor-General and Governors during British rule and have been continued under the Constitution to maintain the dignity of these high offices. 

Parliamentary Privileges (Articles 105 and 194): 

• These provide privileges to members of Parliament and State Legislatures, including freedom of speech and freedom to vote within the House. 
• Until Parliament enacts a law codifying the privileges, the Houses and their members continue to enjoy the privileges that were enjoyed by the British House of Commons before the commencement of the Constitution. 
• Parliament has not enacted any such law till date. 

Diplomatic Immunity: 

• Diplomats and ambassadors of other nations enjoy immunity from civil and criminal jurisdiction under the Vienna Convention on Diplomatic Relations, 1961. 
• It is an international treaty applicable in more than 190 countries on a reciprocal basis. 

What Immunity does the CEC and ECs Have? 

• The CEC & EC Act was passed in December 2023. 
• Section 16 of the Act provides that no court shall entertain or continue any civil or criminal proceedings against any current or former CEC or EC for acts done, or purported to be done, in the discharge of official duties. 
• The immunity is therefore both lifelong and unconditional. 

Why Should this Provision be Removed? 

Comparison with Other Immunities: 

• The immunity of the President and Governors from arrest and criminal proceedings is a colonial relic, but it operates only during their term of office. 
• Parliamentary privileges, though an exception to equality, are largely confined to actions inside the Houses and to the period when the Houses are in session. 
• Diplomatic immunity rests on functional necessity and reciprocity, aimed at facilitating smooth diplomatic relations. 
• Section 16 of the CEC & EC Act goes beyond all of these by extending immunity even after the officer demits office. 

Legislative History of the Provision: 

• The clause granting lifelong immunity was not part of the original Bill introduced in Parliament. 
• Consequently, no rationale for it appears in the Statement of Objects and Reasons accompanying the Bill. 
• It was added as an amendment on the day the Bill was passed in the Rajya Sabha, and was subsequently cleared by the Lok Sabha and assented to by the President. 
• The Union Law Minister justified the amendment as enabling the CEC and ECs to discharge their functions in an unhindered and independent manner. 

Test of Reasonable Classification under Article 14: 

• Article 14 permits classification for the application of laws, but such classification must not be arbitrary or irrational. 
• It must be founded on an intelligible differentia and must bear a rational nexus to the object of the legislation. 

Position of Other Independent Authorities: 

• Several constitutional and statutory authorities are required to discharge their functions independently, including judges, the Comptroller and Auditor General, Chairpersons and members of Public Service Commissions, the Lokpal and Lokayuktas, and Information Commissioners. 
• None of them enjoys lifelong and unconditional immunity for their official actions. 
• The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, which earlier governed the CEC and ECs, contained no such provision. 

Conclusion 

The challenge to Section 16 of the CEC & EC Act brings into focus the tension between protecting the independence of constitutional functionaries and upholding the principle that no person is above the law. Since the immunity is lifelong, unconditional and wider than that enjoyed by the President, Governors, legislators or other independent authorities, and since it was introduced without any stated rationale, it faces serious scrutiny under Article 14. The Supreme Court's decision on the ADR petition will determine whether such blanket immunity can remain on the statute books.