The debate over immunity to CEC, ECs

Why in news?

The Supreme Court issued notice on ADR’s plea challenging Section 16 of 2023 law granting lifelong immunity to CEC, ECs.

UPSC Relevance

Prelims – Rule of Law, Article 14, Article 361, Articles 105 and 194, Article 324, CEC and Other ECs Act 2023, Judges (Protection) Act 1985, Vienna Convention

GS2 – Indian Constitution – significant provisions and basic structure

What is Rule of Law?

Rule of Law means that the country is governed by law and not by the will of any individual. Everyone, including the government and its officers, is subject to the same law. The idea was popularised by British jurist A.V. Dicey (1885), who gave three principles:

• Supremacy of law – No one can be punished except for a clear breach of law decided by ordinary courts. There is no arbitrary power.
• Equality before law – Every person, whatever their rank, is subject to the ordinary law and ordinary courts. No one is above the law.
• Rights flow from court decisions – In Britain, individual rights came from judicial decisions. In India this principle does not apply, since rights flow from the written Constitution.

Rule of Law in India

• Article 14 – The State shall not deny to any person equality before the law (British concept, negative) or the equal protection of the laws (American concept, positive) within the territory of India.
• Basic structure – Rule of Law was held to be part of the basic structure in Indira Nehru Gandhi v. Raj Narain (1975).
• Equality is not absolute – Article 14 allows reasonable classification. It must be based on an intelligible differentia and must have a rational nexus with the object of the law (State of West Bengal v. Anwar Ali Sarkar, 1952). Arbitrariness itself violates Article 14 (E.P. Royappa, 1974).
• Meaning for this debate – Equals must be treated equally, but persons holding special offices can be treated differently if there is a sound reason linked to their functions.

Exceptions to equality before law – immunities and privileges in India

• President and Governors (Article 361) – They are not answerable to any court for the exercise of their official powers. No criminal proceedings can be started or continued, and no arrest or imprisonment can take place, during their term. Civil proceedings for personal acts need two months’ advance notice.
• Members of Parliament and State legislatures (Articles 105 and 194) – Freedom of speech in the House and immunity from court proceedings for anything said or any vote given in the House. Privileges have not yet been codified by law. In Sita Soren v. Union of India (2024), a seven-judge bench held that legislators have no immunity for taking bribes to vote or speak.
• Proceedings of Parliament (Articles 122 and 212) – Courts cannot question the validity of proceedings in the legislature on the ground of irregular procedure.
• Publication of proceedings (Article 361A) – Protection for publishing substantially true reports of proceedings of Parliament and State legislatures.
• Judges – Under the Judges (Protection) Act, 1985, no court can entertain civil or criminal proceedings against a judge for acts done in judicial functions. Higher judiciary judges can be removed only by impeachment. Their conduct cannot be discussed in legislatures (Articles 121 and 211).
• Public servants – Prior sanction is needed to prosecute public servants for acts done in official duty (Section 218 of BNSS, earlier Section 197 CrPC; Section 17A of Prevention of Corruption Act). This is a filter, not complete immunity.
• Foreign diplomats – Immunity from civil and criminal jurisdiction under the Vienna Convention on Diplomatic Relations, 1961, applied in India through the Diplomatic Relations (Vienna Convention) Act, 1972.
• Foreign States and rulers – Under Section 86 of the Civil Procedure Code, foreign States can be sued only with the consent of the Central Government.
• Armed forces (Article 33) – Parliament can restrict fundamental rights of armed forces personnel; laws like AFSPA require prior Central sanction for prosecution.

Why are immunities needed?

• Independence – High offices must take tough decisions without fear of revenge through litigation.
• Dignity of the office – Constant court cases against the head of State or Governors could lower the dignity of these offices.
• Protection from frivolous cases – Officials deciding politically sensitive matters may face a flood of motivated cases.
• Smooth functioning – Legislators need free debate; judges need freedom to decide; diplomats need protection to carry out foreign relations (functional necessity and reciprocity).
• Separation of powers – Each organ is protected from undue interference by the others.

Immunity of CEC and ECs under the 2023 Act

What does Section 16 say?

No court shall entertain or continue any civil or criminal proceedings against any current or former CEC or EC for any action, thing or words done or said by them while discharging official duty or function.

• Lifelong – Protection continues even after the person leaves office.
• Late addition – It was not part of the original Bill and was added as an amendment on the day the Bill was passed in Rajya Sabha. So the Statement of Objects and Reasons gives no reason for it.
• Government’s reasoning – The Law Minister said it was meant to help the CEC and ECs work in an unhindered and independent manner.

Concerns raised by critics

• Lifelong and absolute protection is wider than that given to the President, Governors and legislators.
• Other independent authorities like the CAG, UPSC members, Lokpal and Information Commissioners have no such protection.
• Even the earlier 1991 law had no such clause, and no reason was given for adding it.
• A blanket bar may cover mala fide or illegal actions, weakening accountability.

Way Forward

• Limit immunity to acts done in good faith, as in many statutes that protect officers.
• Use a sanction model, where a court or independent body screens cases before they proceed, instead of a total bar.
• Pair protection for the CEC and ECs with stronger appointment safeguards to build trust in the Commission.
• Parliament should codify legislative privileges to bring clarity to all immunities.

Practice MCQ

Q1. With reference to immunities and privileges in India, consider the following statements:

1. No criminal proceedings can be instituted against a Governor during the term of office.

2. Civil proceedings for personal acts of the President can be started only after giving two months’ notice.

3. Parliament has enacted a law that fully codifies the privileges of its members.

How many of the statements given above are correct?

(a) Only one     (b) Only two     (c) All three     (d) None

Answer: (b). Statement 3 is incorrect. Parliamentary privileges under Article 105 have not yet been codified.

Q2. Consider the following statements:

Statement I: Section 16 of the CEC and Other ECs Act, 2023 has been challenged as violating Article 14 of the Constitution.

Statement II: Article 14 does not permit any classification between persons.

Which one of the following is correct in respect of the above statements?

(a) Both Statement I and Statement II are correct and Statement II explains Statement I

(b) Both Statement I and Statement II are correct but Statement II does not explain Statement I

(c) Statement I is correct but Statement II is incorrect

(d) Statement I is incorrect but Statement II is correct

Answer: (c). Article 14 allows reasonable classification based on intelligible differentia having a rational nexus with the object of the law.

Mains Practice Question

Q. “Immunities granted to certain offices are exceptions to the Rule of Law, but not necessarily violations of it.” Examine with reference to constitutional immunities in India and the lifelong immunity granted to the Chief Election Commissioner and Election Commissioners. (15 Marks, 250 words)

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