Lifelong Legal Immunity for the CEC and Election Commissioners: Why Section 16 of the 2023 Law Is in the Supreme Court
On 13 October 2026, the Supreme Court issued notice (asked for a formal reply) to the Union government and the Election Commission of India on a petition challenging Section 16 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
Section 16 says no court can hear or continue any civil or criminal case against a person who is or was a Chief Election Commissioner (CEC) or Election Commissioner (EC), for anything done or said in the course of official duty. The protection lasts for life, even after the person leaves office.
The petition, filed by the Association for Democratic Reforms (ADR), argues that Section 16 violates Article 14 (equality before law), Article 21 (right to life and personal liberty) and the basic structure of the Constitution. It asks the court to revive cases that ended when the section came into force.
The bench of Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana tagged (joined) this petition with an earlier one by the group Lok Prahari on the same question. In that earlier matter, the court had refused to stay (pause) the provision.
The debate is about scale. The immunity of the President and Governors under Article 361 ends with their term for criminal cases, and the privileges of MPs and MLAs cover only what they say and vote in the House. Section 16 covers former office-holders too, with no stated exception.
Section 16 was not in the original Bill. It was added as a new clause through a government amendment moved in the Rajya Sabha on 12 December 2023, the day the Rajya Sabha passed the Bill.
Article 361: Immunity of the President and Governors
Article 361 of the Constitution protects the President of India and the Governors of states from court cases while they hold office. It says they cannot be dragged into court over how they use the powers of their office. It also says no criminal case can be started against them, and no court can order their arrest, while their term lasts. This protection is called immunity: a legal shield that keeps a person safe from certain kinds of court action.
The petition against Section 16 compares it with Article 361. The President and Governors lose their shield against criminal cases when their term ends, but Section 16 protects CECs and ECs even after they retire. Whether a law made by Parliament can give a body wider protection than the Constitution gives the head of state is at the heart of the case.
Appointment and Removal of the Chief Election Commissioner and Election Commissioners
The Election Commission of India is run by a Chief Election Commissioner (CEC) and other Election Commissioners (ECs). Article 324 of the Constitution creates the Commission but leaves the details of their appointment and service to a law made by Parliament. Until 2023 there was no such law, and the President appointed them on the government's advice. The 2023 Act now sets out how they are chosen, how long they serve and how they are protected.
Section 16 is part of the same 2023 Act that changed how the CEC and ECs are appointed. The petitioners argue that the independence of the Commission was already protected by the Constitution from 1950 to 2023, so a lifelong immunity was never needed for them to work freely.
Parliamentary Privileges (Articles 105 and 194)
Parliamentary privileges are special rights that MPs and MLAs need so they can do their work without fear. Article 105 covers Parliament and Article 194 covers state legislatures. The most important privilege is freedom of speech in the House: no court case can be filed against a member for anything said or any vote given in the House or its committees. These privileges belong to the House as a whole and exist to protect its working, not to place members above ordinary law.
The petition argues that Section 16 goes further than parliamentary privileges. MPs are protected only for speech and votes inside the House, and since 2024 not even for bribery, while Section 16 gives CECs and ECs a blanket shield for all official acts, for life.
- Supreme Court notice on ADR's petition: 13 October 2026; bench of CJI Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana
- Challenged provision: Section 16, CEC and Other ECs (Appointment, Conditions of Service and Term of Office) Act, 2023 (Act No. 49 of 2023)
- Grounds: Articles 14 and 21, and the basic structure
- Section 16 added as clause 15A by a government amendment in the Rajya Sabha on 12 December 2023
- Article 361: criminal immunity and arrest bar only during the term; civil cases for personal acts after 2 months' notice
- Judges (Protection) Act, 1985: Section 3(2) keeps the power of government and courts to act against judges
- Anoop Baranwal (2 March 2023): interim committee of PM, Leader of Opposition and CJI
- Sita Soren (4 March 2024): seven-judge bench; bribery not protected under Articles 105(2) and 194(2)
- Rameshwar Prasad (2006): Governor's personal immunity does not bar judicial review of the action