The Supreme Court has tagged two petitions challenging Section 16 of Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, with a pending plea raising a similar issue. The provision bars courts from entertaining or continuing civil or criminal proceedings against serving or former CECs and election commissioners for acts done or purported to be done in discharge of official duties.A bench told lawyers for Manoj Jha and Arun Agrawal that the cases would be tagged with the pending matter.Jha’s plea argues that Section 16 gives officials wider protection than President, MPs, and SC and HC judges, covering civil and criminal proceedings during tenure and for life, without exceptions for corruption, mala fides or crime. It says President may be prosecuted after leaving office, while a former election commissioner arguably cannot.“A member of Parliament who takes a bribe to vote can be tried but an EC who takes a bribe while “purporting” to act in office arguably cannot. A sitting judge of this court can be prosecuted with sanction yet a retired election commissioner cannot be prosecuted with or without it. The Constitution places no functionary above the law, however Section 16 of the CEC does,” the plea said.
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Agrawal’s plea said the wording “is or was” creates lifelong immunity, while “purporting to act” could cover conduct outside lawful authority. It said the provision contained no good-faith condition and could bar prosecution for corruption, forgery and other serious offences.