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

The Supreme Court questioned whether a 2023 law gives the Chief Election Commissioner and other election commissioners greater legal protection than constitutional court judges. The case concerns alleged unilateral decisions by CEC Gyanesh Kumar during electoral-roll revisions.

The Supreme Court orally observed earlier this week that the extent of legal protection India's Chief Election Commissioner and the other election commissioners get under Section 16 of the 2023 Act is greater that what is accorded 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 relation to the Special Intensive Revision (SIR) of electoral rolls, Live Law reported.

The comments come at a time when the youth-led Cockroach Janta Party and other Opposition parties are alleging malpractice by the CEC. A protest was planned in this regard at Delhi's Jantar Mantar on Saturday, but a number of top CJP leaders were detained by the Delhi Police before they could reach Jantar Mantar, the venue of the stir.

Quick answers to key questions

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QUESTIONS

Section 16 protects the Chief Election Commissioner and other election commissioners from civil and criminal proceedings for acts done, or purportedly done, while performing their official functions. The protection continues after they leave office.

Section 16 bars courts from entertaining or continuing civil or criminal proceedings connected to an official act. The Supreme Court was considering the scope of this protection; the article does not report a final ruling on whether Kumar can be prosecuted.

Opposition parties cite allegations that he made unilateral decisions concerning the Special Intensive Revision of electoral rolls. The article also reports that other election commissioners had objected to decisions and orders they said were made without their knowledge.

During the hearing, the Supreme Court orally observed that Section 16 may provide greater legal protection than judges receive. The article notes that the Judges (Protection) Act preserves government or court authority to take certain actions against judges, a provision absent from the CEC Act.

The article reports oral observations by the Court and says it issued notice to the central government, the Election Commission, the CEC and the other election commissioners. It does not report a final ruling on Section 16.

Appearing for the petitioner, Senior Advocate Vikas Singh said that the law in question, namely the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, have substantial enhancements to the authority as well as immunity of the election commissioners.

The matter was being heard by a bench led 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 Election Commissioners states that the CEC and the other election commissioners have protection from both civil and criminal proceedings in connection to the acts they performed while discharging or purportedly discharging their official functions. This protection even continues after they have demitted office.

Regarding the extent of the protection, Justice Bagchi said, "This protection is perhaps only for the President. It does not apply even to judges," as per Live Law.

"Even the Prime Minister does not have this," Singh submitted while arguing that this is an extraordinary legal protection.

He also said that this framework places the chief election commissioner ""on a pedestal even higher than Supreme Court judges."

"ECI more powerful today than any other constitutional authority," he added.

A notice has been issued by the Supreme Court to the central government, the ECI, the CEC, ECs.

What is The Judges (Protection) Act 1985?

A similar protection has been giving to Supreme Court and High Court judges in the The Judges (Protection) Act 1985, which states in Section 3(1), "no Court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function."

Notably Section 3(2) of the Act states, "the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge."