The Supreme Court on Wednesday sought the response of the Centre and Election Commission of India (ECI) on a petition filed by Rashtriya Janata Dal (RJD) member of Parliament Manoj Kumar Jha challenging the permanent legal immunity granted to chief election commissioner (CEC) and election commissioners from any criminal prosecution for any of their acts or decisions.
While this issue is already under challenge before the top court in a petition filed by two non-profit organisations – Lok Prahari and Association for Democratic Reforms (ADR), this is the first petition filed by a sitting Parliamentarian.
A bench headed by Chief Justice of India (CJI) Surya Kant issued notice on Jha’s petition along with another petition filed by one Arun Kumar Agarwal. The court posted the matter for hearing on December 12 when the pending petitions will be heard.
Jha was represented by advocate Fauzia Shakil, who said that the immunity provided under section 16 of The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 is already under challenge.
While allowing the petitions to be tagged with the Lok Prahari and ADR matters, the bench, also comprising justices Joymalya Bagchi and V Mohana said, “Similar matters are already pending. The bar must be persuaded not to keep filing petitions repeating the same arguments. New petitions should not be filed as pleadings never get complete and this delays the proceedings.”
{{/usCountry}}While allowing the petitions to be tagged with the Lok Prahari and ADR matters, the bench, also comprising justices Joymalya Bagchi and V Mohana said, “Similar matters are already pending. The bar must be persuaded not to keep filing petitions repeating the same arguments. New petitions should not be filed as pleadings never get complete and this delays the proceedings.”
{{/usCountry}}The court said that it will not mind if an important point not raised in any of the pending petitions is brought up. Even then, the bench said, an impleadment can be sought. The bench said that the new petitions will now be cited as a ground by respondents to delay filing a response.
Shakil along with advocate Neha Rathi, appearing for Agarwal, pointed out that notice was issued in the Lok Prahari matter on January 12. Since then, no response has been filed either by Centre or ECI.
What Section 16 Provides
The petition of Lok Prahari had stated that the kind of a life long immunity to CEC and ECs is unprecedented. It stated, “The Constitution does not grant such an immunity even to the President, Prime Minister or judges.” While issuing notice in January, the court had refused to stay the provision while stating, “You have not shown how this law will impact you. This is a public interest litigation. We will examine whether this kind of immunity can be granted based on our constitutional scheme.”
Section 16 bars every court in the country from entertaining or continuing any civil or criminal proceeding against any person who is or was a CEC or election commissioner, for anything done “or purporting” to be done in the discharge of official duty.
Jha stated in his petition, “The Constitution places no functionary above the law, however Section 16 of the CEC (Act) does.” He said, “A member of Parliament who takes a bribe to vote can be tried but an Election Commissioner who takes a bribe while “purporting” to act in office arguably cannot.” Further, he states, “A sitting judge of this court can be prosecuted with sanction yet a retired election commissioner cannot be prosecuted with or without it.”
Claiming the provision to be a fraud on the Constitution, Jha said, “The framers gave the CEC security of tenure i.e. removal only in the manner of a Supreme Court judge as per Article 324(5), however they never intended or gave immunity from prosecution.”
Background to the 2023 Law
The 2023 law was brought soon after a Constitution Bench of the Supreme Court in Anoop Baranwal case (2023) directed for creation of a committee comprising Prime Minister, Leader of Opposition, and Chief Justice of India to recommend names for appointment of CEC and ECs, as a measure to introduce transparency in selection of officers entrusted with conduct of free and fair polls.
With the introduction of the 2023 Act, Parliament replaced CJI or his nominee from the selection panel with a Union minister. This aspect of the law is under challenge before the court in separate proceedings.