The Supreme Court on Wednesday sought the response of the Centre and Election Commission of India (ECI) on a petition filed by Rashtriya Janata Dal (RJD) member of Parliament Manoj Kumar Jha challenging the permanent legal immunity granted to chief election commissioner (CEC) and election commissioners from any criminal prosecution for any of their acts or decisions.
The bar must be persuaded not to keep filing petitions repeating the same arguments. New petitions should not be filed as pleadings never get complete and this delays the proceedings. The petition of Lok Prahari had stated that the kind of a life long immunity to CEC and ECs is unprecedented. It stated, “The Constitution does not grant such an immunity even to the President, Prime Minister or judges. the court had refused to stay the provision while stating, “You have not shown how this law will impact you While issuing notice in January. This is a public interest litigation. We will examine whether this kind of immunity can be granted based on our constitutional scheme. Further, he states, “A sitting judge of this court can be prosecuted with sanction yet a retired election commissioner cannot be prosecuted with or without it.
Jha was represented by advocate Fauzia Shakil, who said that the immunity provided under section 16 of The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 is already under challenge. Jha stated in his petition, “The Constitution places no functionary above the law, however Section 16 of the CEC (Act) does. Claiming the provision to be a fraud on the Constitution, Jha said, “The framers gave the CEC security of tenure i.e. removal only in the manner of a Supreme Court judge as per Article 324(5), however they never intended or gave immunity from prosecution. With the introduction of the 2023 Act, Parliament replaced CJI or his nominee from the selection panel with a Union minister.
the bench, also comprising justices Joymalya Bagchi and V Mohana said, “Similar matters are already pending While allowing the petitions to be tagged with the Lok Prahari and ADR matters. The court said that it will not mind if an important point not raised in any of the pending petitions is brought up. Even then, the bench said, an impleadment can be sought. The bench said that the new petitions will now be cited as a ground by respondents to delay filing a response. He said, “A member of Parliament who takes a bribe to vote can be tried but an Election Commissioner who takes a bribe while “purporting” to act in office arguably cannot.
This aspect of the law is under challenge before the court in separate proceedings.
