The Debate over Immunity to CEC, ECs: Section 16 Explained

The Lift Line

“In view of these aspects, this provision of blanket immunity under the CEC & EC Act must not remain in the statute books.” (Rangarajan R., The Hindu)

Why This Editorial Matters for Your Exam

This Text & Context explainer in The Hindu of 16 October 2026 is by Rangarajan R., a former IAS officer and author of Courseware on Polity Simplified, who trains at Officers IAS Academy; the views are his own. It asks a classic Article 14 question: can Parliament place one set of officials beyond the reach of the courts?

The trigger is a petition by the Association for Democratic Reforms (ADR) against Section 16 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. On 13 October 2026, a Bench of Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana issued notice on the petition, sought the response of the Union and the Election Commission, and tagged it with a similar pending petition by the NGO Lok Prahari. The Court has only issued notice; it has not ruled on the provision.

For context, this site covered the Supreme Court’s split verdict of 23 September 2026 on the 2023 Act in a 24 September deep dive and the plea to recall it in an earlier roundup. This piece is about a different part of the same Act: its immunity clause.

GS Paper 2: Appointment to constitutional posts and the powers and functions of constitutional bodies (the Election Commission); fundamental rights (Article 14, equality before the law); parliamentary privileges and the immunities of the President and Governors.

Background and Context

What Section 16 says

“Notwithstanding anything contained in any other law for the time being in force, no Court shall entertain or continue any civil or criminal proceedings against any person who is or was a Chief Election Commissioner or an Election Commissioner 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 duty or function.”

Read it element by element:

This is why Rangarajan calls the immunity lifelong: because it covers anyone who “is or was” a CEC or EC, a former holder stays protected after leaving office for what was done in office. The protection is tied to official acts.

Where the 2023 Act came from

• Article 324(2): the CEC and ECs are appointed by the President, “subject to the provisions of any law made in that behalf by Parliament”.
• Anoop Baranwal v Union of India (2 March 2023): a five-judge Constitution Bench held unanimously that, until Parliament made a law, the CEC and ECs would be selected by a committee of the Prime Minister, the Leader of the Opposition and the Chief Justice of India.
• The 2023 Act, passed in December 2023, is that law. Under Section 7(1), the President appoints on the recommendation of a Selection Committee of the Prime Minister (Chairperson), the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister, so a Cabinet Minister takes the place the Chief Justice held in the interim arrangement. Section 11 repeats the Constitution’s removal safeguards.
• The earlier law, the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 (Act No. 11 of 1991), dealt with salary, term of office, leave, pension and the transaction of business. It had no immunity clause.

How the clause entered the Act, according to ADR

According to LiveLaw, ADR’s petition points out that Section 16 was not originally part of the Bill as introduced. It was proposed “for the first time as new clause 15A through an official amendment circulated on 11.12.2023” and disclosed to the Rajya Sabha on 12 December 2023, where, the petition says, it “received no debate”. On the same day, motions to refer the Bill to a Select Committee were negatived and the Bill was passed in that House. It was then passed in the Lok Sabha without amendment on 21 December 2023, at a time, the petition says, “when a substantial number of Members of Parliament from the Opposition were under suspension”.

Rangarajan gives the same account in substance: because the clause was not in the Bill as introduced, the Statement of Objects and Reasons offers no rationale for it. The Union Law Minister, he writes, said while moving the amendment that it was brought in to enable the CEC and ECs to discharge their functions “in an unhindered and independent manner”.

The immunities that already exist

Rangarajan also notes that diplomats of other nations enjoy immunity from civil and criminal jurisdiction under the Vienna Convention, on a reciprocal basis.

A correction on parliamentary privilege. Rangarajan writes that, until Parliament codifies its privileges, the Houses enjoy those of the British House of Commons at the commencement of the Constitution. That reference no longer appears in the text. Since the Constitution (Forty-fourth Amendment) Act, 1978, Articles 105(3) and 194(3) say that, until defined by law, the privileges are those each House and its members and committees had immediately before the relevant section of the Forty-fourth Amendment came into force (Section 15 for Article 105, Section 26 for Article 194).

The Analysis

Rangarajan’s argument runs in five steps.

1. Equality is the rule. Article 14 says the State shall not deny to any person equality before the law or the equal protection of the laws. Equality before the law is part of the Rule of Law as propounded by the British jurist A.V. Dicey: no special privileges for any person, the same laws for everyone, and no one above the law. Equal protection of the laws, an American concept, means equal treatment in equal circumstances, in privileges conferred and liabilities imposed alike.

2. The constitutional exceptions are narrow, and each has a reason. Article 361’s immunities were available to the Governor-General and Governors under British rule and continue, he writes, to maintain the dignity of these high offices; he calls the immunity from arrest and criminal proceedings “a colonial relic”. Parliamentary privileges, he argues, are largely confined to actions inside the Houses and to the period when they are in session. Diplomatic immunity rests on functional necessity and reciprocity.

3. Section 16 goes further than all of them. It covers former as well as serving holders, bars both civil and criminal proceedings, and has no reason recorded in the Statement of Objects and Reasons, because it was added on the day the Rajya Sabha passed the Bill.

4. The classification test. Article 14 allows Parliament to classify, but a classification must not be arbitrary or irrational. It must rest on an intelligible and reasonable distinction and bear a reasonable relation to the object of the law.

5. No comparable authority has such a shield. Judges, the Comptroller and Auditor General, Public Service Commission chairpersons and members, the Lokpal and Lokayuktas, and Information Commissioners all have to act independently, and none, Rangarajan writes, enjoys “such life-long and unconditional immunity”. The 1991 law did not contain such a provision. His conclusion: the clause “must not remain in the statute books”.

One qualification for the aspirant. Judges do have a statutory shield. Section 3(1) of the Judges (Protection) Act, 1985 uses almost the same words for any person who “is or was a Judge”, covering acts done in the discharge of “official or judicial duty or function”. The difference is that Section 3(1) is “subject to” Section 3(2), which preserves the power of the Central Government, a State Government, the Supreme Court, any High Court “or any other authority” to take “civil, criminal or departmental proceedings or otherwise” against a judge. Section 16 has no such saving clause. That, not the absence of any protection for judges, is the accurate contrast, and it is what Rangarajan’s word “unconditional” captures.

What the petitions before the Court say

• ADR asks the Court to declare Section 16 unconstitutional as violative of Articles 14 and 21 and the basic structure of the Constitution, in LiveLaw’s summary, and to revive proceedings against present and past CECs and ECs that came to an end when Section 16 came into effect. Its petition argues that no other provision of the Constitution or any statute grants immunity that is “at once lifelong, unconditioned by good faith, free of any sanction mechanism, and without a saving clause”. It relies on Subramanian Swamy v CBI for the point that classifying officers by status for the purpose of an inquiry is impermissible under Article 14. These are a petitioner’s arguments, not findings.
• Lok Prahari’s earlier petition against Section 16 calls the provision “unprecedented, unbridled power”. The Court issued notice to the Centre and the Election Commission on it but declined to stay the provision. ADR’s petition is now tagged with it.
• An oral remark, not a ruling. On 5 October 2026, in a hearing on separate petitions about the Special Intensive Revision (SIR) of electoral rolls, Justice Bagchi orally observed: “This protection is perhaps only for the President. It does not apply even to judges.” The qualification above on the Judges (Protection) Act applies to that remark too.

Data and Institutions Vault

Prelims-grade facts:

The provision:

• Section 16 of the CEC and Other ECs (Appointment, Conditions of Service and Term of Office) Act, 2023 is the immunity clause.
• Under it, courts cannot entertain or continue civil or criminal proceedings against a serving or former CEC or EC for official acts.
• Section 16 covers any person who “is or was” a CEC or EC; its text has no good-faith condition and no saving clause.
• The earlier law, Act No. 11 of 1991, governed the CEC and ECs’ conditions of service and had no immunity clause.

The Election Commission:

• Article 324(2): the President appoints the CEC and ECs, subject to any law made by Parliament.
• Article 324(5): the CEC can be removed only in like manner and on the like grounds as a Supreme Court judge.
• Article 324(5): the CEC’s conditions of service cannot be varied to his disadvantage after appointment.
• Article 324(5), second proviso: an Election Commissioner can be removed only on the recommendation of the CEC.
• Section 7(1), 2023 Act: Selection Committee of the PM (Chairperson), the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the PM.
• Section 7(2), 2023 Act: a vacancy or defect in the Selection Committee does not invalidate an appointment.
• Anoop Baranwal v Union of India (2 March 2023): five-judge Bench; a PM, LoP and CJI committee until Parliament made a law.

Other immunities:

• Article 361(1): the President or a Governor is not answerable to any court for the exercise of the powers and duties of office.
• Article 361(2), (3): no criminal proceedings and no arrest or imprisonment process against them during the term of office.
• Article 361(4): civil proceedings over their personal acts need two months’ written notice.
• Articles 105(2), 194(2): no court proceedings for anything said or any vote given in the House or a committee.
• Articles 105(3), 194(3): uncodified privileges are those held just before the Forty-fourth Amendment (1978) provisions came into force.
• Judges (Protection) Act, 1985, Section 3(1): a near-identical bar for judges, “subject to” the saving clause in Section 3(2).

⚠️ Watch the trap: Articles 105(3) and 194(3) no longer refer to the British House of Commons; the Forty-fourth Amendment (1978) replaced that reference. Judges do have a statutory shield (Judges (Protection) Act, 1985), but with a saving clause; Section 16 has none. Article 361’s bar on criminal proceedings lasts during the term, yet Article 361(1) protects official acts without that limit. And the Supreme Court has only issued notice on Section 16; it has not struck it down.

The Debate

Rangarajan’s case. Equality before the law is the rule and every immunity is an exception that must justify itself. The President’s and Governors’ immunities rest on the dignity of the office, legislators’ privileges on free debate, diplomats’ immunity on reciprocity. Section 16 offers none of these reasons in the Bill itself, reaches former holders, and leaves no authority with the power to proceed. Other independent bodies manage without it, and so did the Election Commission under the 1991 law.

The other side. The stated purpose, as the column reports the Law Minister’s words, is to let the CEC and ECs work “in an unhindered and independent manner”. A body that decides disputes between political parties in the middle of elections is an obvious target for vexatious, politically motivated suits, civil and criminal. The bar is confined to official acts, not to acts done in a personal capacity. Judges have had a closely similar statutory shield since 1985. And Section 16 bars court proceedings only: removal under Article 324(5) is a constitutional process that no statute can override.

The balanced verdict. The real question is not whether election commissioners need protection, but what kind. The judges’ model shows the middle path: protection for official acts, with a saving clause that keeps open the routes of accountability. A shield limited to acts done in good faith, with a sanction mechanism or a saving clause, would meet the independence argument without placing anyone beyond the law. Whether Section 16 as written is valid is now for the Supreme Court.

How to Think About This

Use a four-question immunity test on any provision of this kind:

1. Who is protected: serving holders only, or former holders too?
2. From what: criminal proceedings, civil proceedings, or both?
3. For how long: during the term of office, or for ever?
4. What check remains: a good-faith condition, a sanction requirement, or a saving clause?

Article 361 answers the third question with “during the term” for criminal proceedings. The Judges (Protection) Act answers the fourth with Section 3(2). Section 16 answers “serving and former”, “both”, “for ever” and “none”, which is why it stands out. In a Mains answer, run the four questions, then apply the Article 14 reasonable-classification test to the result.

Diagram-in-Words

Takeaway Box

• Core idea: Section 16 of the 2023 Act bars courts from hearing civil or criminal cases against any serving or former CEC or EC for official acts; Rangarajan R. argues it must not remain in the statute books.
• Know the anchors: Article 324(2) and (5); Sections 7, 11 and 16 of the 2023 Act; Anoop Baranwal (2 March 2023); Article 361; Articles 105 and 194; Judges (Protection) Act, 1985.
• Know the contrast: the judges’ shield has a saving clause (Section 3(2)); Section 16 has none.
• Status: the Supreme Court has issued notice on ADR’s petition and tagged it with Lok Prahari’s; nothing has been decided.
• Mains use: GS2 constitutional bodies, Article 14 and reasonable classification, independence versus accountability.

Revision Flowchart

Sources: The Hindu, Text & Context explainer by Rangarajan R., “The debate over immunity to CEC, ECs”, Delhi print edition, 16 October 2026; LiveLaw, Supreme Court issues notice on ADR’s petition against Section 16, 13 October 2026; LiveLaw, Supreme Court’s oral remarks on the immunity of Election Commissioners, 6 October 2026; Judges (Protection) Act, 1985, Section 3

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