ECI-SIR Row: Is CEC Gyanesh Kumar Immune From Arrest? How An SC Petition Is Countering It | Explained

As controversy intensifies over allegations of voter roll modifications, Leader of the Opposition Rahul Gandhi warned Chief Election Commissioner Gyanesh Kumar, saying that "time will come and we will catch you." He then advised Gyanesh Kumar to become a government witness in the alleged vote-rigging case.

Last year, Congress leader Rahul Gandhi issued a stern warning to the three-member Election Commission. Following recent reports by The Indian Express revealing disagreements within the EC, the opposition is demanding the arrest of Gyanesh Kumar. However, a legal provision hinders action against the CEC while he holds office.

ALSO READ: SIR Row: Plea Filed In SC Seeking Criminal Prosecution Of CEC Gyanesh Kumar; Calls For SIT Probe In 13 Cr Voter Deletions

What’s the legal restraint?

Under the Section 16 of the Chief Election Commissioner and Other Election Commissioners Act, 2023, no court has the authority to hear a civil or a criminal case against against a serving or former CEC or Election Commissioner for any action taking in the course of discharging their official duties.

It 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."

This changes came as part of the law that constituted a committee to appoint the commissioners. Before 2023, there was no specific selection process for the ECs. The President made the appointments on the government's advice, with no role for the judiciary or the Opposition.

ALSO READ: SIR Row: Oppn To Move Impeachment Motion Against CEC Gyanesh Kumar; Moitra Files Police Complaint

The legal restrictions were made following the Anoop Baranwal vs Union of India'case, which set up an interim selection panel of the PM, the LoP and the Chief Justice of India until Parliament legislated. The new law also removed the CJI and placed a minister on the panel. The law therefore allegedly removed the "neutral selector" from the selection process, a Supreme Court bench stated in a recent hearing. The PM and a minister chosen by the PM effectively outnumber the third member on that committee, the Leader of the Opposition (Lok Sabha).

However, the immunity part was not present when Law Minister Arjun Ram Meghwal introduced the bill in August 2023. Nearly four months later, the provision was inserted in the bill and was passed despite the opposing parties disapproval.

What does the new petition say?

The aforementioned legal rule implies only for the acts executed during the tenure of the CEC. The petition filed by advocate Shailendra Mani Tripathi in the Supreme Court states that any descrepancies of the voter list falls outside a commissioner's job description. "The CEC enjoys no personal immunity from criminal prosecution," it states, asking that Gyanesh Kumar be investigated and tried like any other accused. It seeks prosecution under Section 32 of the Representation of the People Act, 1950, and Bharatiya Nyaya Sanhita provisions on fabrication of records.

Petition filed by Tripathi also highlights that the Constitution grants absolute immunity only to President and Governors of India.

While Section 16 of the 2023 Act offers a robust statutory shield for official actions, the pending Supreme Court petition puts that very boundary to the test, arguing that no administrative protection can stand as an absolute immunity against allegations of illegal conduct.