A bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana sought responses on the challenge to Section 16 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

The petition questions the scope of protection extended to serving and former election commissioners, arguing that the provision shields them from civil and criminal proceedings without providing exceptions for alleged misconduct.

What does Section 16 of the 2023 act say?

Section 16 of the legislation bars courts from entertaining or continuing civil or criminal proceedings against a serving or former CEC or Election Commissioner for any act, deed or statement made while discharging, or purportedly discharging, official responsibilities.

The provision was introduced to protect election commissioners against legal action arising from decisions taken in their official capacity.

However, the petitioner, activist and lawyer Arun Kumar Agrawal, has argued that the protection is absolute and does not distinguish between actions carried out in good faith and those allegedly undertaken beyond an official’s jurisdiction.

The plea contends that such sweeping immunity deprives citizens of the civil and criminal remedies otherwise available against the CEC and Election Commissioners.

It also argues that safeguarding the independence of the Election Commission should not mean placing its members beyond legal accountability.

The petitioner has sought a declaration that Section 16 of the 2023 Act is unconstitutional.

Notice issued during hearing on SIR

The development came as the Supreme Court was hearing a separate batch of petitions challenging the Election Commission’s Special Intensive Revision (SIR) of electoral rolls.

During the proceedings, the bench raised concerns over the manner in which the revision exercise was being conducted and questioned whether its implementation risked harassing or intimidating voters.

The judges also sought an explanation for the urgency behind carrying out the exercise in Delhi when no election was scheduled in the immediate future.

The court cautioned the Election Commission against enforcing inflexible deadlines and said the process should allow voters to submit enumeration forms even after the stipulated date.

It also questioned why individuals who had previously been registered on the electoral rolls, but whose names were missing from the draft lists, were being asked to submit Form 6 afresh.

“Can you punish a voter for their negligence by permanently taking away their right to vote?” Justice Joymalya Bagchi asked during the hearing.

Court seeks greater transparency in voter deletions

The bench directed the Election Commission to make physical lists of deleted voters available at the block level in local languages.

It also sought to reassure voters and petitioners that there was no reason to panic while the matter remained under judicial consideration.

The Election Commission informed the court that it would consider extending the deadlines in Delhi and permitting the late submission of enumeration forms.

The bench also clarified that the deletion of a name during the SIR exercise, or the expiry of a prescribed deadline, does not permanently prevent an individual from being included in the electoral roll. Voters can seek corrections until the last date for filing nominations.

The next hearing in the SIR-related matter is scheduled for November 19.