The Supreme Court on Tuesday, 13 October issued notice to the Centre and the Election Commission of India (ECI) on a public interest litigation challenging the blanket immunity granted to the Chief Election Commissioner (CEC) and other Election Commissioners under Section 16 of the Chief Election Commissioner and the other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The PIL was filed by the Association for Democratic Reforms (ADR), a prominent electoral watchdog.

A bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V. Mohana sought responses from the Union government and the poll panel. The matter is tentatively listed for further hearing on 2 November, according to the apex court's case status records.

What Section 16 Says

Section 16 of the 2023 Act provides a sweeping shield to serving and former CECs and Election Commissioners, barring courts from entertaining or continuing any civil or criminal proceedings against them for any act, thing, or word committed while discharging — or purporting to discharge — their official duties. The provision reads: '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.'

ADR's Constitutional Challenge

The ADR has contended that the provision violates Articles 14 and 19 of the Constitution. The petitioner argues that granting such sweeping protection to constitutional functionaries undermines accountability and places them beyond the ordinary reach of law. The plea specifically warns that the immunity could shield alleged arbitrary exercise of power and corruption from judicial scrutiny — a concern critics say is especially pointed given the ECI's outsized role in administering elections to the world's largest democracy.

Broader Judicial Scrutiny of ECI's Framework

This PIL is the latest in a series of legal challenges directed at the statutory and constitutional framework governing the ECI. On 5 October, the Supreme Court issued notice to the Centre, the ECI, and the three Election Commissioners on a separate plea questioning whether CEC Gyanesh Kumar could individually exercise or represent powers vested in the multi-member constitutional body. Senior advocate Vikas Singh, appearing for that petitioner, alleged that the CEC's functioning was contrary to the statutory framework, and that Article 324 of the Constitution vests superintendence, direction and control of elections in the ECI as an institution — not in the CEC acting alone.

Notably, the constitutional validity of the 2023 Act itself — particularly its exclusion of the Chief Justice of India from the selection committee for appointing the CEC and Election Commissioners — has also come under judicial scrutiny. On 23 September, a two-judge bench of the Supreme Court delivered a split verdict on whether petitions challenging the law should be referred to a Constitution Bench. Justice Dipankar Datta rejected the plea for reference, while Justice Satish Chandra Sharma held that the challenge raised a substantial question of constitutional interpretation and favoured placing the matter before a larger bench. Both judges directed that the papers be placed before CJI Surya Kant to consider constituting a Constitution Bench.

The 2023 Law and Its Selection Committee

Under the 2023 Act, the selection committee for appointing the CEC and Election Commissioners comprises the Prime Minister, the Leader of Opposition in the Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister. This replaced the earlier interim arrangement prescribed by the Supreme Court in its March 2023 judgment in Anoop Baranwal v. Union of India, which had included the CJI alongside the Prime Minister and the Leader of Opposition. Opposition parties and civil society groups have argued that the removal of the CJI weakens the independence of the appointment process.

What Happens Next

With the next hearing tentatively set for 2 November, the Centre and ECI will be required to file their responses. The accumulation of concurrent challenges — on immunity, on the CEC's individual powers, and on the selection committee's composition — signals that the Supreme Court may be moving toward a comprehensive examination of the ECI's constitutional and statutory standing. The outcome could have lasting implications for electoral accountability in India.