Debate on immunity to CEC, EC

The provision granting lifelong and unconditional immunity to the CEC or EC was not part of the original bill that was tabled in Parliament. | Photo credit: SUSHIL KUMAR VERMA

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The Supreme Court recently issued a notice to the Center on a petition by the Association for Democratic Reforms (ADR) challenging the lifetime immunity granted to the Chief Election Commissioner and Election Commissioners (CEC and EC) for acting in the discharge of official duties.

What is equality before the law?

Equality is a fundamental right and part of the basic structure of our constitution. Article 14 guarantees that the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India. Equality before the law is part of the concept of “Rule of Law” proposed by British lawyer AV Dicey. This means that there will be no special privileges in favor of any person; everyone is subject to the same set of laws; and no one will be above the law, regardless of their position in society. Equal protection of the law is an American concept which means that there shall be equal treatment under equal circumstances, both in privileges and obligations imposed by law.

What are constitutional immunities?

The Constitution provides certain immunities/privileges to certain authorities. Article 361 provides certain immunities to the President and Governors. It provides that there shall be no criminal trial and no process of arrest or imprisonment of the President or Governor during their term of office. Even civil proceedings against the President or the Governor cannot be commenced except after a two-month notice period. These privileges were available to the Governor-General and Governors during British rule. They continue to exist under our Constitution to preserve the dignity of these high offices.

Articles 105 and 194 provide privileges for members of Parliament and State Legislatures, which include freedom of speech and voting. The Constitution also provides that until Parliament passes an Act to codify the privileges, the Houses and Members will continue to enjoy the privileges enjoyed by the British House of Commons before the Constitution came into force. Parliament has not yet passed any law codifying the privileges.

Diplomats and ambassadors of other nations enjoy immunity from civil and criminal jurisdiction under the Vienna Convention. It is an international treaty applicable on a reciprocal basis in more than 190 countries.

What immunity do CEC and EC have?

The Chief Electoral Commissioner and Other Electoral Commissioners (Appointment, Conditions of Service and Conditions of Office) Act 2023 (CEC and EC Act) passed in December 2023 contains section 16 which provides that no court shall institute or continue any civil or criminal proceedings against any present or former CEC or EC for acts done or alleged to have been done in the performance of official duties.

Why should this provision be removed?

Immunity from arrest and prosecution for the president and governors is a colonial holdover that persists in our constitution. However, it should be noted that this immunity is only during their term of office. While parliamentary privilege is an exception to equality, it is largely limited to actions within the Houses of the Legislature and to the periods when the Houses are in session. Diplomatic immunity is based on functional necessity and reciprocity to facilitate the smooth functioning of diplomatic relations.

The provision granting lifelong and unconditional immunity to the CEC or EC was not part of the original bill that was tabled in Parliament. There is therefore no justification for the inclusion of this clause in the “Statement of Objects and Reasons” submitted with the Bill at the time of introduction. This clause was added as an amendment on the day the bill was passed in the Rajya Sabha, which was subsequently passed by the Lok Sabha and assented to by the President.

The Union Law Minister, while introducing this amendment, said that it was brought to enable CEC and EC to perform their functions unhindered and independently.

The equal protection of the law under Article 14 allows for the creation of separate classifications for the application of laws. However, the classification of equal protection laws should not be arbitrary or irrational. It must be based on an intelligible and reasonable distinction. Furthermore, the classification must have a reasonable relationship to the aim or purpose of the legislation.

There are various constitutional and statutory bodies which are required to perform their functions independently. It includes Judges, Comptroller and Auditor General, Chairpersons and members of Public Service Commission, Lokpal and Lokayuktas and Information Commissioner. None of these bodies have such lifelong and unconditional immunity for their official actions. The Election Commission (Conditions of Service of Election Commissioners and Business Transactions) Act, 1991, which was the earlier law governing the tenure of CECs and ECs, had no such provision. In view of these aspects, this blanket immunity provision under the CEC & EC Act must not remain in statute.

(Rangarajan R. is a former IAS officer and author of ‘Courseware on Polity Simplified’. Currently training at the Officers IAS Academy. Opinions expressed are personal.)

Published – 16 Oct 2026 07:00 IST