Before the government brought an amendment this week to give current and former members of the Election Commission of India protection from litigation, the poll panel had expressed concern over a spate of recent FIRs and court orders against the Chief Election Commissioner in election-related matters, The Sunday Express has learnt.
After the Bill to regulate the appointment and service conditions of the CEC and Election Commissioners was discussed in Rajya Sabha on December 12, Law Minister Arjun Ram Meghwal moved an amendment to add a new clause to provide protection to the CEC and ECs. He said this was necessitated as a trial court had issued notices to the CEC and EC recently.
The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 was eventually passed with the amendment.
The new clause says: “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.”
According to sources, the EC had expressed concern to the Law Ministry over the recent FIRs and court orders directed at the Commission.
The immediate trigger behind the amendment was a case in Mahabubnagar, Telangana, where a trial court had ordered an FIR against the MLA of the area for tampering with his 2018 election affidavit and included CEC Rajiv Kumar and other EC officials as co-accused in August. Later that month, the Telangana High Court suspended the judge in question.
Last year, the Karnataka High Court quashed a summons issued to former CEC Sunil Arora by a single-judge bench in connection with a 2019 election case, saying current or former Constitutional functionaries cannot be summoned. In 2021, a Madras High Court judge had observed that the EC was responsible for the spread of Covid-19as the Tamil Nadu elections were being held then, and that the officers should be “booked”.
A source said with 4,123 Assembly constituencies and 543 Lok Sabha seats – each has10 to 20 candidates – and 1.5 crore polling personnel, there was a large interface of election authorities with the people. After elections, the EC did not have protection against litigation for the functions, both quasi-judicial and administrative, that it performs during polls, the source said.
Apart from providing protection to the poll panel, the Bill also kept the status of the CEC and ECs the same as that of a Supreme Court judge – which is the case now. The government had introduced the Bill in August with a clause equating the CEC and ECs with the Cabinet Secretary, something which led to protest from former CECs. As first reported in The Indian Express on September 17, a group of former CECs decided to write to the Prime Minister to express concern about the potential “downgrade” of the status of the ECI. The letter was sent to the PMO on September 16.
The Bill had earlier made the removal process of the CEC and ECs the same – i.e. through impeachment. Currently, the CEC can be removed by impeachment alone, while the ECs can be removed on the recommendation of the CEC. This clause, however, has been amended in the Bill now, keeping a status quo in the removal process.
Reacting to the amendments, some of the former CECs, who had written to the Prime Minister, appreciated the move to keep the status of the ECI equivalent to a Supreme Court judge.
“More or less, the representation made by all of us was that the Bill should not lead to a perception of a downgrade in the status of the CEC and ECs. This has been accepted,” former CEC N Gopalaswami said.
He said that recent cases against the CEC and ECs, which were not the norm 15-20 years ago, have led to the need to protect the EC from “litigation that will hamper their working”.
Former CEC O P Rawat said while the amendment had addressed the concerns about the status of the EC, it had done away with the equivalence in the removal process of the CEC and ECs.
“The fact is that the two ECs feel they are on probation and may try to please the government of the day to ensure that they are promoted. It is a matter of concern,” Rawat said.
Former CEC S Y Quraishi said the letter by the former CECs was only on one issue – the equivalence of status with a Supreme Court judge – and that had been accepted.
“Protection from litigation is very welcome,” he said. He expressed concern over the inclusion of another clause that enables the President to make rules to determine conditions of service related to travel allowance, medical facilities etc for the CEC and EC.
“This may give room to the executive, when they are unhappy with the EC, to amend the rules as they don’t have to go to Parliament. It can be a stick in the hands of the executive,” he said.
© The Indian Express Pvt Ltd
First published on: 17-12-2023 at 04:05 IST