Explore why no one can file a case against the Chief Election Commissioner under the 2023 law, and understand its impact on voter accountability, electoral transparency, and ECI independence in India.
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NEW DELHI: In recent weeks, political discourse has shifted towards the independence and accountability of the Election Commission of India (ECI). The controversy was reignited when Congress leader Rahul Gandhi accused Chief Election Commissioner (CEC) Gyanesh Kumar of ‘protecting vote chors’ and colluding with the ruling BJP to ‘steal elections’. Following these remarks, many critics and observers asked a pointed question: If such serious allegations exist, why isn’t the opposition pursuing them in court?
Why can’t anyone file a case against the Election Commission of India (ECI) or its members despite serious allegations?
The answer lies in a 2023 legal shift.
The 2023 Law That Grants Complete Immunity
In December 2023, the Modi Government passed the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, replacing the 1991 Act. One of its most consequential provisions is Section 16, which states:
“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.”
This means that current and former Election Commissioners enjoy complete legal immunity for anything they do, say, or decide while discharging their official duties. No court, civil or criminal, can take up a case against them.
Passed Amidst Political Turmoil
The law was passed under controversial circumstances:
- 146 opposition MPs were suspended during the Winter Session of Parliament in December 2023.
- The Act was passed swiftly, with little debate or discussion.
- It came just months before the 2024 Lok Sabha elections, raising suspicions about its timing and intent.
Critics argue that this law was specifically designed to insulate the Election Commission from legal accountability during a critical election season.
Impact on Voter Accountability
This immunity clause fundamentally alters how citizens can hold the ECI accountable:
- No Judicial Scrutiny – Allegations of misconduct, bias, or collusion cannot be tested in court.
- Erosion of Checks and Balances – By placing the ECI above legal challenge, one of democracy’s key institutions is effectively shielded from oversight.
- Loss of Voter Power – Voters no longer have the legal recourse to challenge election commissioners for actions that may undermine free and fair elections.
The Appointment Controversy
The same 2023 law also changed how election commissioners are appointed. Earlier in March 2023, the Supreme Court ruled that appointments should be made by a three-member panel consisting of:
- The Prime Minister
- The Leader of the Opposition in the Lok Sabha
- The Chief Justice of India
This system was meant to balance government, opposition, and judiciary voices to ensure independence.
But the 2023 Act removed the Chief Justice from this panel and replaced them with a Union Minister nominated by the Prime Minister. This gives the government two out of three seats on the selection committee, significantly tilting the balance of power.
The 2023 Act
Background:
The 2023 Act replaces the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. It was introduced after the Supreme Court’s judgment in Anoop Baranwal v. Union of India (2023), where the Court held that the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) would be made by a panel comprising the Prime Minister, Leader of Opposition, and the Chief Justice of India until Parliament enacted a law. Before this ruling, appointments were made solely on the advice of the Union Council of Ministers.
Key Provisions of the 2023 Act:
- Selection Committee: The CEC and ECs will now be appointed by the President on the recommendation of a committee consisting of the Prime Minister (Chairperson), the Leader of Opposition in the Lok Sabha (or leader of the largest opposition party), and a Union Cabinet Minister nominated by the Prime Minister.
- Search Committee: Headed by the Law Minister with two senior bureaucrats as members, it shortlists five candidates, though the Selection Committee can go beyond this list.
- Eligibility: Candidates must have held Secretary-level posts in the Government of India, with integrity and experience in election management.
- Tenure and Salary: CEC/ECs receive the salary of a Supreme Court judge, serve for six years or until 65 years of age, and cannot be reappointed. If an EC is elevated to CEC, the combined tenure cannot exceed six years.
- Resignation and Removal: The CEC can only be removed like a Supreme Court judge; an EC may be removed on the recommendation of the CEC. Both can resign to the President.
Key Concerns Regarding the 2023 Act:
- Exclusion of the CJI: The Act replaces the judicial presence in the selection panel with a Union Minister, giving the executive two out of three votes.
- Separation of Powers: Critics argue that Parliament, through this law, has effectively diluted a Supreme Court-mandated safeguard and is facing legal challenges on constitutional grounds.
- Vacancy Issues: If the LoP post is vacant (as during dissolution of Lok Sabha), appointments can be made only by the PM and a Union Minister, concentrating power further in the executive.
Section 7(2) of the Election Commission (Conditions of Service and Transaction of Business) Act, 2023, clearly provides that:
“The appointment of Chief Election Commissioner and other Election Commissioners shall not be invalid merely by reason of any vacancy in, or any defect in the constitution of, the Selection Committee.”
Implication of Section 7(2):
This provision ensures that appointments cannot be challenged solely on technical grounds, such as:
- A vacant post in the Selection Committee (for instance, if the Leader of Opposition position is not filled due to dissolution of the Lok Sabha).
- Any procedural defect in constituting the Committee.
- Threat to Independence of EC: With heavy executive influence, the impartiality and credibility of the Election Commission may be undermined, affecting free and fair elections.
- Search Committee Dominance: The role of the Law Minister in shortlisting names strengthens executive control even before final selection.
In addition, the 2023 Act must be seen in the wider legal context of immunity for official acts under the Indian Constitution and statutes. Under Article 361, the President and Governors enjoy immunity for “official acts done” by them; in many interpretations, so long as an act is within the scope of their office, they cannot be prosecuted for it, even if alleged to be improper.
Similarly, judges are protected by the Judges (Protection) Act, 1985, which gives them immunity from civil or criminal proceedings for acts done in the exercise of their judicial functions.
However, immunity does not extend to corrupt or manipulative acts outside the scope of lawful duty: those can still be challenged. A person aggrieved can approach the Election Commission of India (if relevant), or initiate a PIL (Public Interest Litigation) in the Supreme Court or High Court, seeking judicial review, or action under criminal law (e.g., corruption statutes), in order to hold ECs/CEC accountable.
READ/DOWNLOAD THE CHIEF ELECTION COMMISSIONER AND OTHER ELECTION COMMISSIONERS (APPOINTMENT, CONDITIONS OF SERVICE AND TERM OF OFFICE) ACT, 2023
Case Title:
Anoop Baranwal v. Union of India
WRIT PETITION (CIVIL) NO.104 OF 2015
Read /Download Judgment Copy:
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