Can Gyanesh Kumar be prosecuted? Interpreting Section 16 of CEC Act as CJP, Oppn claims CEC took unilateral decisions

Earlier this week, the Supreme Court orally observed that the scope of legal protection of the Chief Election Commissioner of India and other Election Commissioners under Section 16 of the 2023 Act is greater than that afforded to judges of constitutional courts.

The comment was made during a hearing on petitions filed against the alleged unilateral decisions taken by CEC Gyanesh Kumar in connection with the Special Intensive Revision (SIR) of electoral rolls, It was reported by Live Law.

The comments come as the youth-led Janta Cockroach Party and other opposition parties accuse the CEC of wrongdoing. A protest in this regard was planned at Delhi’s Jantar Mantar on Saturday, but a number of senior CJP leaders were detained by the Delhi Police before they could reach Jantar Mantar, the venue of the agitation.

Quick answers to key questions

•5 QUESTIONS

Section 16 protects the Chief Electoral Commissioner and other Electoral Commissioners from civil and criminal proceedings for acts committed or alleged to have been committed in the performance of their official duties. Protection continues even after they leave office.

Section 16 prohibits courts from conducting or continuing civil or criminal proceedings related to an official act. The Supreme Court addressed the scope of this protection; the article does not report a final decision on whether Kumar can be prosecuted.

Opposition parties cite allegations that he made unilateral decisions regarding a particularly intensive revision of electoral rolls. The article also states that other election commissioners have raised objections to decisions and orders that they say were made without their knowledge.

During the hearing, the Supreme Court stated orally that Section 16 can provide greater legal protection than what is available to judges. The article notes that the Judges (Protection) Act preserves governmental or judicial powers to take certain measures against judges, a provision absent from the CEC Act.

The article gives the Court’s oral observations and states that it has issued notices to the Central Government, Election Commission, ÚVK and other Election Commissioners. It does not state the final decision on § 16.

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Senior advocate Vikas Singh, appearing for the petitioner, said that the law in question, namely the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Tenure) Act, 2023, significantly expands the powers and immunity of the Election Commissioners.

The matter was heard by a bench headed by Chief Justice of India Surya Kant, where Justice Joymalya Bagchi and Justice V Mohana were also present.

Section 16 of the 2023 Act, CEC and Electoral Commissioners states that CEC and other Electoral Commissioners are protected from civil and criminal proceedings in relation to acts done by them in the performance or purported performance of their official functions. This protection continues even after they have left office.

Regarding the scope of the protection, Justice Bagchi said, “This protection is only possible for the President. It does not extend to judges either,” as reported by Live Law.

“Even the prime minister doesn’t have that,” Singh argued, saying it was an extraordinary legal protection.

He also said the framework puts the Chief Election Commissioner “on a pedestal even higher than a Supreme Court judge”.

“The ECI today is stronger than any other constitutional body,” he added.

The Supreme Court has issued a notice to the Central Government, ECI, CEC, ECs.

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What is The Judges (Protection) Act 1985?

Similar protection is given to judges of the Supreme Court and the High Court in The Judges (Protection) Act 1985, which states in section 3(1) that “no court shall institute or continue any civil or criminal proceedings against any person who is or has been a judge for any act, thing or word committed, done or uttered by him acting or in the exercise of or in the course of his official or judicial duty.”

In particular, Section 3(2) of the Act states that “the power of the Central Government or a State Government or the Supreme Court of India or any High Court or any other authority under any law in force to take such action (whether by civil, criminal or departmental proceedings or otherwise) against any person who is or has been a Judge.

This provision is not contained in the CEC Act.