The Supreme Court has recently issued notices to the Centre on a petition filed by the Association for Democratic Reforms (ADR) challenging the lifelong immunity granted to the Chief Election Commissioner and Election Commissioners (CEC and EC) for actions taken in discharge of official duties.
The Constitution does provide some immunities/privileges to certain offices. It states that there shall be no criminal proceedings and no process for arrest or imprisonment of President or Governor during their term of office. These privileges were available to Governor General and Governors during the British rule. They have continued to exist under our Constitution to maintain the dignity of these high offices.
Article 361 provides certain immunities to the President and Governors. Even civil proceedings against President or Governor cannot be initiated except until expiration of 2 months’ notice.
The provision granting life-long and unconditional immunity to the CEC or ECs was not part of the original Bill that was introduced in the Parliament. The Parliament has not enacted any law to codify privileges till date. The immunity from arrest and criminal proceedings for the President and Governors is a colonial relic that has continued in our Constitution. It must however be noted that this immunity is only during their term of office. they are largely confined to actions inside the Houses of the legislature and to the period when the Houses are in session While Parliamentary privileges are an exception to equality. Diplomatic immunity is based on functional necessity and reciprocity, in order to facilitate the smooth functioning of diplomatic relations. Hence, there is no rationale provided for the inclusion of this clause in the ‘Statement of Objects and Reasons’ submitted along with the Bill at the time of introduction. This clause was added as an amendment on the day the Bill was passed in Rajya Sabha that was subsequently cleared by Lok Sabha and assented to by the President.
Article 105 and 194 provides the privileges for members of Parliament and State legislatures, which includes freedom of speech and vote.
The Union Law Minister, while introducing this amendment had said that it was brought in to enable the CEC and ECs to discharge their functions in an unhindered and independent manner.
The Constitution also provides that till Parliament enacts a law to codify the privileges, the Houses and members will continue to enjoy the privileges that were enjoyed by the British House of Commons before the commencement of the Constitution.
