This supposed immunity until death, for any action taken by ECs and CEC against civil or criminal charges, comes from the Chief Election Commissioner and Other Election Commissioners Bill, 2023, passed by the BJP-led NDA.
Published Sep 18, 2025 | 6:07 PM ⚊ Updated Sep 18, 2025 | 6:09 PM
[LTR] Election Commissioner Sukhbir Singh Sandhu, Chief Election Commissioner Gyanesh Kumar, Election Commissioner Vivek Joshi.
Synopsis: The Congress’s Kerala unit has claimed that the Chief Election Commissioner and Election Commissioners enjoy lifetime immunity from civil and criminal proceedings for actions taken in discharge of official duties, exceeding even the protections afforded to the President of India. The allegation refers to Clause 16 of the Chief Election Commissioner and Other Election Commissioners Bill, 2023, which bars courts from entertaining such cases against both serving and retired officials. South First examines the claims.
After Congress leader Rahul Gandhi accused Chief Election Commissioner (CEC) Gyanesh Kumar of protecting the “murderers of democracy” on Thursday morning, the Kerala unit of the Congress alleged that the only reason the Leader of the Opposition has not taken legal action against the Election Commissioners for their alleged role in the “vote theft” is because they enjoy criminal immunity that “even the President of India doesn’t have.”
“No court anywhere in India can take any case against Election Commissioners [ECs] for any civil or criminal offence that they committed during their tenure till they die. They have taken themselves out of all laws of the land. Even President of India doesn’t have such criminal immunity,” the official X account of Congress Kerala alleged.
“Election Commissioners, including retired ones, are above all criminal laws of this country. Through them Modi, Shah and their henchmen are also above law. People of India rejected them a few years ago. They are clinging on to power with fake votes.”
This supposed immunity until death, for any action taken by ECs and CEC against civil or criminal charges, comes from the Chief Election Commissioner and Other Election Commissioners Bill, 2023, passed by the BJP-led NDA.
People might ask why can’t @RahulGandhi file a case against Election Commissioner Gyanesh Kumar?
Read the Clause-16 of The Chief Election Commissioner and Other Election Commissioners Bill, 2023 which BJP passed after suspending 141 MPs in December 2023.
No court anywhere in… pic.twitter.com/ekhEAcOHMy
— Congress Kerala (@INCKerala) September 18, 2025
The Kerala Congress unit has pointed to Clause 16 of the bill to make its claims. 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.”
Clause 16 of the the Chief Election Commissioner and Other Election Commissioners Bill, 2023
On its face, this shields both serving and former the CEC and the ECs from civil or criminal proceedings for actions, words or deeds committed in the course of acting, or purporting to act, in the discharge of official duties or functions. But this immunity is not absolute. It is limited to acts performed in their official capacity.
Theoretically, however, it could afford a blanket immunity to the CEC and the ECs if their acts can be constituted as part of their official discharge of duties.
It is important to note that the CEC and the ECs enjoy the same stature and privileges as the Chief Justice of the Supreme Court, including salary and other benefits.
Judges also enjoy a similar form of immunity for their official actions. Under the Judges (Protection) Act, 1985, they cannot be sued for actions taken in discharge of judicial duties, though they can face departmental or criminal action by higher authorities.
The Judges (Protection) Act, 1985
“Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-section (2), no court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge 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 or judicial duty or function,” the Act states.
Similarly, the claim by the Congress Kerala unit that the CEC and the ECs enjoy more immunity than the President of India is overstated.
Article 361 of the Constitution makes clear that the President and Governors are not answerable to courts for official acts during their tenure, and they enjoy immunity from criminal proceedings while in office.
“(2) No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor 1 of a State, in any court during his term of office,” the Constitution states.
Where the Congress’ claim does carry some weight is in the checks that exist against this immunity in the case of judges, governors and the President.
Article 361 of the Constitution
The Constitution makes it clear that while the Governors and the President enjoy absolute immunity against prosecution while in office, they may be held responsible for personal actions through civil cases once they demit office.
“(2) No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor 1 of a State, in any court during his term of office. (3) No process for the arrest or imprisonment of the President, or the Governor 1 of a State, shall issue from any court during his term of office, article 361 of the Constitution states.
“(4) No civil proceedings in which relief is claimed against the President, or the Governor 1 of a State, shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President, or as Governor 1 of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor 1***, as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefor, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims.”
Similarly, the Judges (Protection) Act, 1985 includes a key caveat that acts as a check on judicial immunity:
“(2) Nothing in sub-section (1) shall debar or affect in any manner the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge.”
The Congress claim that the CEC and the ECs are “above all criminal laws” overstates the position. Clause 16 of the 2023 law does provide a significant shield, but it is tied to “acting or purporting to act” in the discharge of official duties.
The difference is that in the case of the CEC and the ECs, the immunity extends to both serving and retired officials and is framed without an explicit mechanism for accountability.
The Chief Election Commissioner and Other Election Commissioners Bill, 2023, only includes a mechanism for the protection of the CEC and the ECs but not one to hold them accountable.
Whether this amounts to a blanket immunity in practice will need to be tested in the court of law. If courts take a broad view, even questionable decisions could be insulated from scrutiny.
(Edited by Dese Gowda)
