Supreme Court issues notice on immunity for election commissioners, asks lawyers to stop filing petitions

A bench led by Chief Justice Surya Kant tagged petitions by Manoj Kumar Jha and Arun Agrawal with pending challenges to Section 16 of the 2023 Act and listed them for 18 December.

The Supreme Court on Wednesday, 4 November 2026, issued notice on two petitions challenging Section 16 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The section bars civil and criminal proceedings against the Chief Election Commissioner (CEC) and Election Commissioners for acts done in the discharge of official duties.

A bench of Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana tagged the petitions, filed by RJD MP Manoj Kumar Jha and activist-advocate Arun Agrawal, with a pending challenge by the NGO Lok Prahari. The matters are listed for hearing on 18 December.

The Chief Justice also asked members of the Bar to stop filing fresh petitions on the provision. "Our only request is that now stop filing petitions otherwise pleadings will never get complete," he said, adding that all the points had already been taken exhaustively.

What Section 16 says

Section 16 bars courts from entertaining or continuing any civil or criminal proceeding against a person who is or was the CEC or an Election Commissioner. It covers any act, thing or word committed, done or spoken in the course of acting, or purporting to act, in discharge of official duties.

The words "is or was" mean the protection does not end when a term ends. The petitions say the section is void for violating Articles 14, 21, 32, 129, 215, 226 and 324 of the Constitution.

Articles 32 and 226 give the Supreme Court and the High Courts their writ powers. Articles 129 and 215 make both courts courts of record, with the power to punish contempt of themselves.

Where the Chief Justice drew the line

The Chief Justice said repeated petitions raising substantially similar issues delay the completion of pleadings. They also divert the Court's attention from the principal challenge, the bench observed.

He said that if a genuinely important point had been missed in the existing petition, a fresh petition could be considered. Seeking impleadment in the pending proceedings and raising the additional issue there was another route, he suggested.

The case made by Jha and Agrawal

Jha's petition calls Section 16 a "fraud" on the Constitution. It says the section gives election commissioners an unprecedented, lifelong immunity through an ordinary statute, wider than the protection available to the President, Governors, legislators or judges of constitutional courts.

He argues that Article 324 does not contemplate such protection. Parliament, he says, cannot use its power to prescribe conditions of service to place election commissioners beyond judicial scrutiny for life. Advocate Fauzia Shakil appeared for him.

The petition adds that Section 16 came in through an official amendment shortly before Parliament passed the 2023 law, without adequate scrutiny or public consultation. It says the provision substantially copies the Judges (Protection) Act, 1985, but leaves out safeguards that preserve the power of constitutional courts and the government to initiate proceedings against judges.

Agrawal's petition argues that the Constitution grants absolute immunity to no one, not even the President, legislators or judges of constitutional courts. It says the tenure of Election Commissioners is already protected, so nothing justifies blanket immunity from accountability.

The petition adds that the provision takes away civil and criminal remedies from voters, candidates and other citizens aggrieved by alleged wrongdoing by election commissioners. Advocate Neha Rathi appeared for Agrawal.

Earlier challenges by Lok Prahari and ADR

The Court is already seized of challenges to Section 16 by Lok Prahari and the Association for Democratic Reforms (ADR). It issued notice on Lok Prahari's petition in January 2026.

Lok Prahari has argued that Article 324 does not lift the Election Commission above the law, and that the immunity exceeds what the President and Governors enjoy. It has also pointed out that Section 16 was absent from the original Bill and was introduced at the last minute.

Article 324 protects tenure, not immunity

Article 324(1) vests the superintendence, direction and control of elections in the Election Commission. Under Article 324(2), the Commission consists of the CEC and as many other Election Commissioners as the President fixes, with appointments made by the President subject to any law made by Parliament.

Article 324(5) lets Parliament legislate on conditions of service and tenure. Its first proviso says the CEC can be removed only in the manner and on the grounds applicable to a Supreme Court judge, and that service conditions cannot be varied to his disadvantage. The second says other Election Commissioners can be removed only on the CEC's recommendation.

M.P. Jain, in Indian Constitutional Law, describes the Commission as a body autonomous in character and insulated from political pressure. He reads the CEC's judge-like security of tenure as letting the office act without fear or favour. In T.N. Seshan v. Union of India (1995) 4 SCC 611, the Supreme Court approved a multi-member Commission.

Aditya Sondhi's chapter on elections in The Oxford Handbook of the Indian Constitution notes that Seshan read the removal safeguard as shielding Election Commissioners from political and executive pressure. None of these provisions speaks of immunity from suit.

Immunities appear elsewhere in the Constitution. Article 361 protects the President and Governors, and Articles 105 and 194 protect what legislators say and vote in the House. Judges are covered by the 1985 Act that the petition says Section 16 copies.

Anoop Baranwal and the 2023 Act

In Anoop Baranwal v. Union of India (2023) 6 SCC 161, a five-judge Constitution Bench led by Justice K.M. Joseph noted that Parliament had never made the law Article 324(2) contemplates. As a stopgap, it directed that appointments follow the advice of a committee of the Prime Minister, the Leader of the Opposition and the Chief Justice until Parliament legislated.

Parliament then passed the 2023 Act. Its Section 7(1) replaced the Chief Justice on the selection committee with a Union Cabinet Minister nominated by the Prime Minister.

In Dr Jaya Thakur v. Union of India (2024 INSC 246), Justices Sanjiv Khanna and Dipankar Datta on 22 March 2024 refused to stay the Act or the appointment of two Election Commissioners. They called the Baranwal directions a pro tem measure for a legislative vacuum. They also said their observations were tentative.

That challenge was to who sits on the selection committee. The present petitions ask a different question: whether Election Commissioners, once appointed, can be shielded from every civil and criminal proceeding for official acts.

Equality before law and the writ courts

Article 14 allows the State to classify persons for special treatment only where the classification rests on an intelligible differentia that bears a rational connection with the object of the law. The petitioners' comparison with the President, Governors, legislators and judges is an argument about that test.

Their reliance on Articles 32 and 226 also engages L. Chandra Kumar v. Union of India (1997) 3 SCC 261, which held that the writ jurisdiction of the Supreme Court and the High Courts is part of the basic structure.

On judges, the closest precedent is K. Veeraswami v. Union of India (1991) 3 SCC 655. A criminal case against a judge of a constitutional court can proceed there, but only after consultation with the Chief Justice of India.

The petitions by Manoj Kumar Jha and Arun Agrawal will be heard with the Lok Prahari challenge, on which notice was issued in January 2026. The next hearing is on 18 December.