/
A bench led by CJI Surya Kant issued notice on RJD MP Manoj Jha's petition against Section 16 of the 2023 Act, which bars courts from hearing cases against past and present election commissioners for official acts. It is tagged with ADR's and Lok Prahari's pleas; no stay has been granted.

The Supreme Court on Wednesday 4 November issued notice to the Centre and the Election Commission of India on a fresh petition challenging the legal immunity given to the Chief Election Commissioner and the other Election Commissioners. A bench of Chief Justice Surya Kant and Justice Joymalya Bagchi agreed to tag the petition, filed by Rashtriya Janata Dal MP Manoj Jha, with two similar pleas already pending. All the petitions are expected to be heard together on 18 December. Justice Bagchi remarked on the number of petitions on the provision: "How many similar petitions are coming! There is no end to it."
Mr Jha's petition is the only one of the three filed by a member of Parliament. The other two are by the Association for Democratic Reforms and by Lok Prahari, a civil society organisation. The court has not stayed the provision.
The provision is Section 16 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. It says that no court shall entertain or continue any civil or criminal proceedings against a person who is or was the Chief Election Commissioner or an Election Commissioner for any act, or any words spoken, in the discharge or purported discharge of official duty. The wording applies despite anything in any other law, and it covers former holders of the office as well as current ones.
The section was not in the original Bill. It was added as a new clause through an official amendment circulated on 11 December 2023. The petitioners say it was not debated in the Rajya Sabha, where motions to send the Bill to a select committee were negatived, and that the Lok Sabha passed the Bill on 21 December 2023 without amendment while many Opposition members were suspended. The Act itself replaced the interim arrangement laid down by the Supreme Court in Anoop Baranwal v. Union of India on 2 March 2023, under which a committee of the Prime Minister, the Leader of the Opposition and the Chief Justice would advise the President on appointments until Parliament made a law. The 2023 Act put a Union Cabinet minister in the place of the Chief Justice.
ADR, whose petition the court noticed on 13 October 2026, argues that Section 16 violates Articles 14 and 21 and the basic structure of the Constitution. Its main points are three. The protection is lifelong and blanket, and it has no rational link to the independence of the office, because the Constitution had secured that independence since 1950. It treats election commissioners differently from others: ADR says the President, state governors and judges do not enjoy comparable immunity once they leave office. And it removes accountability, since proceedings that had been pending against present and past commissioners ended when the section took effect, which ADR asks the court to revive. ADR relies on the Supreme Court's decision in Subramanian Swamy v. CBI, which struck down a statutory immunity that treated classes of senior officials differently.
Critics, among them the activist Anjali Bharadwaj, argue that the immunity is wider than the one judges have under the Judges (Protection) Act, 1985. The Lok Prahari petition, on which notice was issued in January 2026 with a stay refused, makes a similar challenge.
Section 16 does not shut every door. It bars civil and criminal proceedings against the person, which is different from reviewing the Commission's decisions. A voter, a party or a petitioner can still challenge an order of the Commission, such as a revision of the rolls, in the Supreme Court or a High Court under Articles 32 and 226. What the section removes is a suit for damages, or a criminal complaint, against the individual commissioner for acts done in office. The Constitution also already protects the office in another way: under Article 324(5) the Chief Election Commissioner can be removed only in the manner and on the grounds of a Supreme Court judge, and the other commissioners only on the Chief Election Commissioner's recommendation. The wording of Section 16 echoes the Judges (Protection) Act, 1985, which is why the comparison with judges runs through the petitions.
The Centre has not yet filed its answer, and the arguments usually made for such a provision are easy to state. An institution that runs elections must be free of harassment by litigants who lost, and officials who take thousands of decisions under time pressure need protection for acts done in good faith. Similar protections exist elsewhere in Indian law: judges have the 1985 Act, the President and governors have Article 361 while in office, and public servants need sanction before prosecution for official acts. However, those protections are either shorter in time, attached to a procedure such as prior sanction, or written into the Constitution, which is the point on which the petitioners say Section 16 differs.
The constitutional question therefore is not whether any protection is permissible. It is whether a statute may bar every court from entertaining any case, for ever, against holders of one constitutional office, without a sanction or an exception for bad faith. The court has several options. It can strike the section down. It can read it down so that it covers only acts done in good faith in the discharge of duty, and leaves room for action in cases of corruption or malice. Or it can uphold it. Reading down is the middle course the court often takes when a provision has a legitimate aim but is drafted too widely.
The case comes at a charged moment. The Commission's special intensive revision of the electoral rolls is itself being argued in the Supreme Court, and protests in Delhi against the Chief Election Commissioner were before the same bench on 3 November. Whatever the merits of those disputes, the question of whether the people who run the Commission can be taken to court for what they do in office has become live.
The hearing on 18 December will bring together the three petitions. Until then, Section 16 remains the law, and the Centre's reply, due before that date, will show how it defends a protection that has no equal for any other constitutional office.
Sources
About the Author
Desk Editor
Subhash Gupta is a writer at Wirony, contributing articles that are reviewed and verified by the editorial team before publication. The publication prioritises accuracy, editorial…
What did you think?
A report says the Telangana special investigation team is preparing an additional chargesheet naming former chief minister K. Chandrashekar Rao as prime accused in the phone-tapping case. The BRS calls it vendetta. The chargesheet is not reported as filed.
Subhash Gupta4 min
A Supreme Court bench of Justices B.V. Nagarathna and R. Mahadevan has stayed the Madras High Court's 8 September order directing the Centre to take custody of art trafficker Subash Chandra Kapoor and facilitate his return to Germany. The High Court relied on the speciality rule.
Prateek Rawat4 min
Karnataka minister Priyank Kharge called on CEC Gyanesh Kumar to step down, asking why he has not addressed reports that two of three Election Commissioners disagreed with him. He raised concerns about bulk Form 7 applications and software, and said the Congress will protest on 1 November.
Amita Sahani4 min
Devpalik Gupta, digital communication manager of Prashant Kishor's Jan Suraaj Party, vanished from the Ranchi-Patna Jan Shatabdi Express on Monday and was found dead on Tuesday near Muri Junction in Jharkhand. The cause is unknown; the postmortem is awaited. Colleagues allege police delay.
Reyaansh Agarawal4 min
The final electoral roll for Karnataka, published on 27 October after the Special Intensive Revision, has about 4.55 crore voters, a net fall of 99.32 lakh from 5.54 crore. After claims and objections, 10.08 lakh electors were added and 1.88 lakh deleted. Most of the fall came at the draft stage.
Subhash Gupta4 min
The Defence Acquisition Council, chaired by Rajnath Singh, granted Acceptance of Necessity on Monday to capital proposals worth about Rs 2.12 lakh crore, covering drones, counter-drone systems, helicopters, air defence and guns. About 82% of the value is to come from Indian industry.
Prateek Rawat4 min
Mumbai Police has formed an SIT, on the chief minister's instructions, to probe a purported 29-minute audio clip released by Maratha quota activist Manoj Jarange Patil alleging a Rs 500 crore payment route. Sanjay Raut wants the ED to probe it; the Shindes deny it and the BJP calls the clip fake.
Amita Sahani4 min
In a 15-point affidavit, the Election Commission told the Supreme Court that a plea to restrain CEC Gyanesh Kumar is not maintainable, that he can be removed only as a Supreme Court judge can, that three SIR orders were unanimous and that Form 6 was not amended. It sought time for a detailed reply.
Prateek Rawat4 min
The Supreme Court collegium has recommended Justice Tapabrata Chakraborty of Calcutta as chief justice of Telangana, Justice P. Sam Koshy for Delhi, Justice Manash Ranjan Pathak for Gujarat and Justice Sudhir Singh for Uttarakhand. The Centre must process the names before they are notified.
Reyaansh Agarawal4 min
A special MP/MLA court in Sultanpur, Uttar Pradesh, dismissed the criminal defamation case against Rahul Gandhi on Monday. The complaint, filed by a BJP functionary, concerned a remark about Amit Shah at a Bengaluru press conference in May 2018. The court's reasons were not given in the reports.
Reyaansh Agarawal4 min
Telangana Chief Minister Revanth Reddy asked Maharashtra for a 152 metre height for the Tummidihetti barrage when he met Devendra Fadnavis in Mumbai. Fadnavis said he was ready to review the 148 metre agreement of 2016 if Maharashtra is not harmed, and proposed a joint committee of officials.
Amita Sahani4 min
Chennai's Central Crime Branch arrested former School Education Minister Anbil Mahesh Poyyamozhi on Monday, hours after the Madras High Court rejected his anticipatory bail plea. Police say about 177 private schools paid a 'party fund' for approvals; he denies it and the DMK calls it vendetta.
Prateek Rawat4 min