Lifelong Legal Immunity for Election Commissioners: Supreme Court Seeks Centre's and ECI's Reply
The Supreme Court has asked the Union government and the Election Commission of India (ECI) to reply to a new petition against 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 while carrying out official duties. Because it also covers former office holders, critics call it "lifelong" immunity (immunity means protection from being taken to court).
The petition, filed by a Rajya Sabha member, argues that Section 16 is an almost word-for-word copy of Section 3(1) of the Judges (Protection) Act, 1985, but leaves out Section 3(2). That sub-section keeps the power of the government, the Supreme Court and the High Courts to act against a judge. Without it, the petition says, no authority can act against a CEC or EC at all.
It asks the court to strike down Section 16 for violating Articles 14, 21 and 324 and the basic structure, or else to "read it down" (interpret it narrowly) so that it does not block criminal cases.
The petition also points out that Section 16 was not in the Bill first placed before Parliament. It was added through an official amendment in December 2023, along with changes that gave the CEC and ECs the salary and status of a Supreme Court judge.
This is one of several challenges to Section 16. The court had earlier issued notice on a plea by the Association for Democratic Reforms (ADR) in October 2026 and on a plea by the NGO Lok Prahari in January 2026.
Judges (Protection) Act, 1985: Legal Shield for Judicial Acts
The Judges (Protection) Act, 1985 is a short law made by Parliament that protects judges from being sued or prosecuted for the work they do as judges. It says no court can hear a civil case (like a claim for money) or a criminal case against a current or former judge for any act done or word spoken while doing judicial work. But the law also keeps a door open: the government, the Supreme Court, the High Courts and other lawful authorities can still take action against a judge. So it protects judges from harassment by private parties, without placing them above the law.
The petition says Section 16 of the 2023 election commissioners' law copies Section 3(1) of this Act almost word for word, but drops Section 3(2). Judges therefore remain open to action by the State and higher courts, while the petition argues that a CEC or EC would not be. The Supreme Court will now examine whether this difference is constitutional.
Appointment and Removal of the Chief Election Commissioner and Election Commissioners
The Election Commission of India is led by a Chief Election Commissioner (CEC) and, at present, two Election Commissioners (ECs). Article 324 of the Constitution creates the Commission but leaves the method of appointment to a law made by Parliament. That law is the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. It sets out who selects them, how long they serve and how they are paid.
Section 16 is part of this 2023 law. The petitions argue that "conditions of service" under Article 324 cannot be used to place the CEC and ECs beyond the reach of courts for life, while the government will defend it as protection for officials doing a sensitive job.
Sanction for prosecution of public servants: from CrPC Section 197 to BNSS Section 218
Most public servants in India cannot be dragged into a criminal case for their official acts without permission from the government that can remove them. This permission is called sanction. It exists to protect honest officers from false or revenge cases, while still allowing prosecution when there is real evidence. It is a filter, not a wall.
The petition argues that even ordinary public servants, and judges under Section 3(2) of the 1985 Act, can be prosecuted once the right authority agrees. Section 16 has no such route for a CEC or EC, which is why critics call it a complete bar rather than a filter.
- Challenged provision: Section 16, CEC and Other ECs (Appointment, Conditions of Service and Term of Office) Act, 2023
- Section 16 covers any person who "is or was" a CEC or EC, for acts or words in official duty
- Model provision: Section 3(1), Judges (Protection) Act, 1985; omitted safeguard: Section 3(2)
- Grounds in the petition: Articles 14, 21 and 324, and the basic structure
- Other challenges: ADR plea (notice in October 2026); Lok Prahari plea (notice in January 2026)
- Judges (Protection) Act, 1985: Act No. 59 of 1985, in force 6 September 1985
- Anoop Baranwal v. Union of India: 2 March 2023
- CEC/EC term: 6 years or age 65; salary equal to a Supreme Court judge
- Article 361: immunity for the President and Governors; Articles 105/194: legislative privilege