Immunity to Chief Election Commissioner and Election Commissioners

GS-II | Polity | Fundamental Rights | Election Commission

Why in News?

• A recent notice was issued to the central government by the Supreme Court based on a petition filed by the Association for Democratic Reforms (ADR).
• The ADR is petitioning against the lifetime immunity given to the Chief Election Commissioner and Election Commissioners (CEC and EC) from liability for actions performed in connection with their official duties.

Equality Before the Law

• Article 14: Equality is a fundamental right and part of basic structure of our Constitution. It 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.
• Rule of Law: The principle of equality under the law is part of what British legal scholar A.V. Dicey called “Rule of Law.”
• Equality before the law: Everyone has access to the same laws and no one receives special treatment based on their position within society. No individual is superior to the law.
• Equal Protection of the Law: Equal treatment for individuals who are similarly situated, with regard to the rights granted to them and the obligations they must fulfill based upon the law.

Constitutional Immunities

• Article 361: Provides some immunity to both the President and Governor. The President and Governor are immune from criminal prosecution and the issuance of a warrant for their arrest or imprisonment during their time in office. In addition, civil suits may not be filed against the President or Governor prior to receiving two months’ written notification.
• Purpose: To ensure the status of these positions remains intact.
• Articles 105 and 194: Give members of Parliament and State Legislature privileges such as freedom of speech and voting. To date, Parliament has not passed a law to establish privileges.
• Diplomatic Immunity: The Vienna Convention allows for diplomatic and ambassadorial immunity from both civil and criminal prosecution. This immunity applies to all of the 190+ member states who are parties to the agreement.

Immunity to CEC and ECs

• CEC & EC Act, 2023: Section 16 states that no court will accept or allow to proceed, either a civil or criminal case, against any present or past CEC or EC, based on their actions (or purported actions) while performing their official duties.

Why Should This Provision Be Removed?

• Immunity of President and Governors: This immunity from arrest and criminal prosecution for the President and Governors was created as part of the Colonial legacy in the United States, and it continues to exist today through our Constitution. However, this immunity only applies while these individuals are in office.
• Parliamentary Privilege: Parliament has special rights and privileges which are separate from other people’s rights and privileges. However, most of these rights and privileges can only be used within the grounds of the Houses of Parliament and while the Houses are meeting.
• Diplomatic Immunity: Diplomatic immunity is a principle that applies to foreign diplomats. This principle exists for two reasons. One reason is so that foreign diplomats can carry out their duties without interference. The other reason is so that countries will treat each other’s diplomats with respect. Diplomatic immunity allows foreign diplomats to conduct business in other countries without being subject to the laws of those countries.
• Lifelong Immunity: The provision that gives a lifetime guarantee of immunity (unconditional) to the Chief Election Commissioner (CEC) or Election Commissioners (ECs) was not included in the original bill. There is no justification given in the ‘Statement of Objects and Reasons’ that accompanied the bill when it was first introduced, for the addition of this provision.
• Amendment: That portion of the clause that has been amended is a result of it being introduced as an amendment on the same day the bill was passed through Rajya Sabha which then went through Lok Sabha and finally received the President’s approval.
• Government’s explanation: The Union Minister of Law stated that this change in law was made so that the Chief Election Commissioner and other members of the Election Commission could perform their duties without interference or undue influence.
• Article 14 and Reasonable Classification: Classification for purposes of equal protection under the law cannot be arbitrary or unreasonable; rather it must be based upon a distinction that is both intelligible and reasonable, as well as have a direct and reasonable relationship to the goal or purpose of the legislation.
• Comparison with Other Authorities: The judges of the Supreme Court, the Comptroller & Auditor General of India, the chairmen and members of the Public Service Commission, the Lokpal/Lokayuktas and the Information Commissioners are not provided with as much immunity for their actions during their tenure as the President.
• Earlier law: There was no such provision in the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.

Way Forward

• Equal protection under the law is classified by whether it is arbitrary or irrational.
• It must be based on intelligible and reasonable distinction.
• The classification must be reasonably related to the objective or goal of the law.

Conclusion

• Given the reasons stated above, this provision for absolute immunity through the CEC & EC Act should no longer be a part of our laws.

UPSC Mains Practice Questions

Q. Why should the provision granting life-long and unconditional immunity to the CEC and ECs be removed?

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