Manish Tewari | Blanket Immunity Of CEC, ECs Should Go

The rule of law is the foundational principle that distinguishes a constitutional democracy from an autocracy. The celebrated rule of law stands in stark juxtaposition to the Victorian era maxim rex non potest peccare (the king can do no wrong). The protection of the State from liability, however, has little place in the modern constitutional schema in India. As early as the Government of India Act, 1858, the liability of the State was recognised with the provision to sue and be sued by the Secretary of State in Council. That provision, pari materia, continued in successive Acts and even in Article 300 of the Constitution, affirming that the majestic institution of the State, howsoever integral and indivisible or sovereign it may be, is not immune from legal and equitable proceedings and the force of law.

The same cannot be said true for an institution that is supposed to be ‘the’ neutral arbiter of India’s democratic processes namely-the Election Commission of India.

Section 16 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 was enacted to grant a blanket immunity to CEC and ECs so appointed. Never did the Constitution-makers envisage that the rule of law and the liability of the State would be turned on their head by an act of Parliament.

Section 16 has erected a fortress of perpetual and absolute immunity around CEC and ECs that is more impregnable than the protections enjoyed by the President of India and more absolute than those available to judges of the constitutional courts.

Article 361, which grants immunity to the President and governors, is carefully circumscribed: it operates only during the term of office, and it does not bar the institution of civil proceedings after the expiration of two months’ notice, and there is no bar on the review of their conduct during an investigation for impeachment.

The comparison with judicial immunity is particularly instructive, for it exposes the deliberate asymmetry that the legislature intended to introduce. Section 3(1) of the Judges (Protection) Act, 1985, provides that no court shall entertain or continue any civil or criminal proceeding against a judge for any act done in the discharge of official or judicial duty.

Section 16 of the 2023 Act is a near-verbatim reproduction of this provision, extending it to the CEC and ECs for acts done in the discharge of official functions. However, the resemblance is deceptive and the divergence is damning.

Section 3(2) of the 1985 Act expressly preserves the power of the Central government, the Supreme Court, the high courts, and other competent authorities to take civil, criminal, departmental, or other action against judges as permitted by law. No such saving clause exists in the Act of 2023.

Diplomats enjoy immunity under Article 31 of the Vienna Convention on Diplomatic Relations, but that immunity is functional, reciprocal, and subject to waiver by the sending state.

The only genuine parallel to the perpetual and absolute immunity conferred by Section 16 is the erstwhile sovereign immunity of the monarch, against which the entire constitutional edifice of modern India was erected.

Even the protection of the Crown liability was based on two rules which were deeply rooted in English law. These were the rule of substantive law that the King could do no wrong, and the procedural rule that the King could not be sued in his own courts. However, the present immunity to the CEC and ECs does not even stand the test of these two ground rules, much less the rule of law.

The argument that impeachment is the appropriate constitutional remedy for misconduct by the CEC and ECs is fundamentally misconceived. The impeachment of a CEC under Article 324(5) read with Article 124(4) is a political process, not a criminal trial. Its object is to protect the public interest by removing an unsuitable person from office on impeachable grounds, not to impose a punitive measure on an individual. The unique nature of impeachment as a political remedy, distinct from criminal proceedings, ensures that the most powerful magistrates should remain amenable to the ordinary law.

Except in the case of the President, where Article 361 expressly bars criminal proceedings during the term of office and accountability of the President to a court of law for the acts done while in office, the Constitution does not provide that impeachment is either a condition precedent to, or a bar on, criminal proceedings. The removal of a CEC, like the removal of a judge of the Supreme Court or a High Court, is a mere termination from office on the satisfaction of Parliament that the ground for removal has been made out.

The Constitution does not immunise the CEC from criminal liability for acts done during the tenure of office. What follows is that, except in an impeachment proceeding under Article 61, Parliament's power to convict and remove individuals from office does not overlap with criminal remedies for misconduct.

The practical reality of impeachment in the Indian political context renders it an illusory remedy. The process is long-drawn, requiring political consensus that is rarely forthcoming in a polarised polity, and it is often barricaded by unwilling presiding officers who have repeatedly rejected removal motions on subjective grounds.

When the individual liable to be condemned is backed by the majority party or the ruling dispensation, an impeachment proceeding will never see the light of day, and the constitutional duty of the opposition to hold the executive and its appointees to account is frustrated.

The blanket immunity conferred by Section 16 does not merely supplement this procedural difficulty; it renders the constitutional remedy of impeachment the only avenue of accountability while simultaneously ensuring that the avenue is, in practice, permanently closed.

The individual concerned is neither removed from office nor subjected to the ordinary processes of criminal law, and the public perception of guilt remains unresolved and unaddressed.

For a healthy and accountable democracy, the investigations and testimonies during such proceedings must be brought out from behind the shroud of official secrecy for public scrutiny well before the articles of impeachment are tried by Parliament. Otherwise, the erosion of trust in constitutional institutions becomes inevitable.