The nationwide protests demanding accountability from Chief Election Commissioner (CEC) Gyanesh Kumar have brought an obscure but consequential provision of Indian law into the spotlight: the sweeping legal immunity granted to the CEC and Election Commissioners (ECs), including protection that continues after they leave office. The controversy raises a larger question about the limits of immunity for those entrusted with exercising public power. From the President and state governors to legislators, judges, civil servants and diplomats, Indian law recognises several forms of protection from legal proceedings. But these safeguards differ considerably in scope, duration and purpose.
The immediate controversy centres on Section 16 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. On October 5, the Supreme Court orally observed that the protection it affords the CEC and ECs may be broader than that available to constitutional court judges. The Court was hearing petitions concerning decisions allegedly taken unilaterally by Kumar in connection with the Special Intensive Revision (SIR) of electoral rolls.
Section 16 prohibits courts from entertaining or continuing civil or criminal proceedings against a serving or former CEC or EC in respect of acts, things or words done or spoken in the discharge, or purported discharge, of official duties. The provision has attracted criticism because its protection continues after the Commissioners leave office, raising questions about whether it adequately distinguishes legitimate official action from alleged misconduct.
The challenge to this provision has been pending before the Supreme Court for months. In November 2025, Lok Prahari, a Uttar Pradesh-based non-governmental organisation, filed a petition challenging the breadth and constitutionality of Section 16. The organisation argued that the provision creates an unprecedented shield against accountability, potentially extending to allegations of corruption, misuse of office and unlawful conduct beyond the legitimate scope of an Election Commissioner’s duties.
Lok Prahari contended that comparable immunity is not available even to the President or Supreme Court judges in the same form. It has also criticised the pace of proceedings and the absence of timely responses from the authorities. The petition alleged that neither the Union government nor the Election Commission of India (ECI) had filed a response despite the passage of several months.
Since its filing, the case has been listed on seven occasions. The Supreme Court issued notice in January 2026 and sought the ECI’s response in March. The matter was subsequently scheduled for May but did not come up for hearing on two occasions. On October 5, when a bench, comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana was hearing two other petitions seeking Kumar’s resignation and challenging Section 18 of the 2023 Act, senior advocate Kapil Sibal informed the Court that the Lok Prahari petition was scheduled to be heard later in October.
The Supreme Court has not yet delivered a final ruling on the validity of Section 16. Its observations during the October hearing, however, have brought renewed attention to the question of whether a statutory provision can grant elected and appointed public institutions such extensive protection without undermining constitutional accountability.
A SEPARATE CHALLENGE TO THE 2023 LAW
The controversy over immunity is unfolding alongside a separate challenge to the legislation governing the appointment of Election Commissioners.
On September 23, 2026, the Supreme Court delivered a split verdict in that challenge. Justices Dipankar Datta and Satish Chandra Sharma differed over whether the matter should be referred to a Constitution bench, leaving the question to the chief justice for the constitution of a larger bench.
Petitioner Jaya Thakur has since filed a curative petition seeking reconsideration of the order. She has alleged a reasonable apprehension of bias following reports that Justice Sharma’s son appears as counsel for the Election Commission before the Madhya Pradesh High Court. The allegation forms part of the petitioner’s challenge; it is not, by itself, a judicial finding of bias.
Meanwhile, Opposition parties have intensified their campaign against the SIR exercise. The INDIA bloc has also approached the Supreme Court, seeking judicial scrutiny of the Election Commission’s decisions and raising questions about the exercise of its powers under Article 324 of the Constitution, which governs the Election Commission’s authority over elections.
The immediate political demand is Kumar’s removal or resignation. The legal question is broader: how far can immunity extend when the conduct of a constitutional authority itself becomes the subject of judicial scrutiny?
THE DIFFERENCE BETWEEN PROTECTION AND IMPUNITY
Social activist Anjali Bharadwaj has argued that the immunity provided to Election Commissioners is wider than the protection available to judges under the Judges (Protection) Act, 1985.
The comparison requires some qualification. Judicial immunity is designed to ensure that judges can discharge their functions independently, without fear of personal litigation arising from their decisions. It does not amount to a general licence for criminal conduct unrelated to judicial duties.
Section 3(1) of the 1985 Act protects judges from civil or criminal proceedings in respect of acts, things or words done or spoken while acting or purporting to act in the discharge of their judicial duties. Section 3(2), however, preserves the powers of the Union and state governments, the Supreme Court, High Courts and other competent authorities to take appropriate action against judges in accordance with the law.
The distinction is significant. Judicial independence requires protection against harassment through vexatious litigation, particularly where a litigant seeks to intimidate a judge over an unfavourable ruling. But safeguards against frivolous proceedings must coexist with mechanisms for dealing with genuine allegations of misconduct.
In Anowar Hussain vs Ajoy Kumar Mukherjee, the Supreme Court recognised the importance of protecting judicial acts performed within a judge’s jurisdiction. The underlying principle is that judges must be able to decide cases without the threat of personal litigation merely because a decision is alleged to be erroneous, irregular or unlawful.
In K Veeraswami vs Union of India, the Supreme Court laid down safeguards governing criminal proceedings against senior members of the judiciary. The judgment addressed the need to protect judicial independence while recognising that judges are not beyond the reach of the law. The precise procedural requirements established in that case must be understood in their specific legal context; they do not constitute a blanket exemption from investigation or prosecution for every form of misconduct.
The broader principle is clear: immunity should protect the independent exercise of public duties, not automatically extinguish accountability for conduct that falls outside their legitimate exercise.
THE PRESIDENT AND GOVERNORS: CONSTITUTIONAL PROTECTION
The President of India and state governors enjoy a distinct form of immunity under Article 361 of the Constitution.
Under Article 361(1), the President and governors are not answerable to any court for the exercise and performance of the powers and duties of their offices, or for acts done or purported to be done in the exercise of those powers and duties, subject to the constitutional scheme.
Article 361(2) provides that no criminal proceedings can be instituted or continued against the President or a governor during their term of office. They cannot be arrested or imprisoned during that period. Article 361(3) also protects them from civil proceedings concerning personal acts during their term, subject to prescribed notice requirements.
These protections are constitutionally grounded and linked to the functioning of the highest executive offices. They do not mean that every official action is immune from judicial examination. Article 361 does not prevent appropriate legal proceedings against the Union or a state government, and constitutional challenges to official action remain possible within the limits of the law.
The distinction matters because immunity from being personally answerable in court is not necessarily the same as immunity for the government or institution whose actions are challenged.
LEGISLATORS: PRIVILEGE HAS ITS LIMITS
Members of Parliament and state legislators enjoy another form of constitutional protection.
Articles 105(2) and 194(2) protect legislators from court proceedings in respect of anything said or any vote given in Parliament or a state legislature, subject to the constitutional provisions governing legislative privilege. The purpose is to preserve freedom of debate and voting without the threat of external legal retaliation.
But the Supreme Court has drawn a firm line between legislative privilege and criminality.
In its landmark 2024 judgment in Sita Soren vs Union of India, a seven-judge Constitution bench unanimously held that MPs and MLAs cannot claim immunity from criminal prosecution for bribery connected with a speech or vote in the legislature.
The ruling overruled the contrary interpretation adopted by the majority in the 1998 PV Narasimha Rao vs State case. The Court stressed that accepting a bribe is a distinct criminal act and cannot be immunised merely because the intended transaction relates to a legislative speech or vote.
The judgment reaffirmed a fundamental principle of public life: constitutional privilege exists to protect legislative functioning, not to place corruption beyond the reach of criminal law.
PUBLIC SERVANTS: SANCTION BEFORE PROSECUTION
Civil servants and other public officials enjoy a different, more qualified safeguard.
Section 218 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which replaced Section 197 of the Code of Criminal Procedure, generally requires prior sanction from the competent government authority before a court can take cognisance of certain alleged offences by public servants connected with acts performed in the discharge, or purported discharge, of official duties.
For Union government employees, the relevant authority is generally the central government; for state government employees, it is generally the state government, subject to the provision’s terms and applicable legal exceptions.
The purpose is to prevent malicious or retaliatory prosecutions arising from legitimate administrative decisions. Officials who must make difficult decisions in the public interest should not be paralysed by the prospect of criminal proceedings initiated simply to harass them.
However, a requirement for prior sanction is not equivalent to permanent immunity. It is a procedural safeguard governing when and how prosecution may proceed. Whether sanction is required depends on the nature of the alleged offence, the official’s position and the relationship between the alleged conduct and official duties.
This distinction is central to the current debate. A legal system can protect officials against frivolous prosecution without granting them an unconditional and lifelong exemption from accountability.
DIPLOMATS: IMMUNITY UNDER INTERNATIONAL LAW
Diplomatic immunity rests on a different foundation: the need to enable diplomatic representatives to perform their functions without interference from the host state.
India is a party to the Vienna Convention on Diplomatic Relations, which is given domestic effect through the Diplomatic Relations (Vienna Convention) Act, 1972.
Article 31 of the Convention provides diplomatic agents with immunity from the criminal jurisdiction of the receiving state, along with broad immunity from its civil and administrative jurisdiction, subject to specified exceptions. Article 29 protects diplomatic agents from arrest or detention.
The extent of immunity enjoyed by other officials, international organisation personnel and family members varies according to their status, applicable conventions and domestic law. It would, therefore, be inaccurate to assume that every employee of an international organisation, or every family member of a diplomat, enjoys identical protection.
Diplomatic immunity is not intended to legitimise wrongdoing. The Convention provides mechanisms through which the sending State may waive immunity, while the receiving State may declare a diplomat persona non grata.
Here, too, the governing rationale is functional necessity rather than a general principle that public office places an individual above the law.
THE ELECTION COMMISSION AT THE CENTRE OF THE STORM
The current controversy, however, returns to the office of the Chief Election Commissioner.
An investigation published by The Indian Express has raised questions about whether Kumar took decisions concerning the SIR exercise unilaterally, without consulting the other two Election Commissioners. The allegations have added to the political opposition’s demand for his resignation or removal.
The claims must be assessed against the relevant statutory provisions, the Election Commission’s procedures and the evidence available to the courts. The allegation of unilateral decision-making does not, by itself, establish illegality or criminal misconduct.
Nevertheless, the controversy highlights the importance of transparency in an institution whose decisions can determine the composition of electoral rolls and affect citizens’ ability to exercise their right to vote.
The Election Commission occupies a position of exceptional constitutional significance. Article 324 vests it with powers of superintendence, direction and control over elections to Parliament, state legislatures, and the offices of President and Vice-President, subject to the constitutional and statutory framework.
That authority must be accompanied by public confidence in the fairness of its decisions. Immunity may be necessary to prevent political vendettas and frivolous litigation from disrupting the electoral process. But if its scope is so broad that legitimate allegations of misconduct cannot be meaningfully examined, it risks undermining the very trust the protection is meant to preserve.
WHERE SHOULD THE LINE BE DRAWN?
The central issue is not whether Election Commissioners should enjoy protection from politically motivated prosecution. They should. The question is whether the law has drawn that protection too broadly, particularly by extending it beyond their tenure and potentially insulating a wide range of official acts from judicial proceedings.
The government and the Election Commission have an opportunity to clarify the provision’s scope and explain the safeguards that remain available when serious allegations arise. The Supreme Court, meanwhile, must determine the constitutional validity and proper interpretation of the statutory protection before it.
The pending petitions could have consequences extending well beyond the Election Commission. They may help define how Parliament can structure immunity for independent constitutional authorities, and what safeguards are necessary to reconcile institutional independence with the rule of law.
For now, the timing of a substantive hearing and the eventual outcome remain uncertain. The protests against Kumar have made the controversy politically urgent, but its ultimate resolution will depend on constitutional principles rather than political demands alone.
Immunity is an important instrument of governance. Properly designed, it allows public officials to act without fear of harassment. Too broadly drawn, it can weaken the accountability that gives public authority its legitimacy.
The challenge before the Supreme Court is to establish where protection ends and impunity begins.
—The writer is former Senior Managing Editor, India Legal magazine
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