सीईसी की आजीवन प्रतिरक्षा: जवाबदेही से दूर एक खतरनाक कदम

OpinionChief Election Commissioner immunity can't mean freedom from accountability

The voter rolls dispute has exposed deeper concerns about centralised control, unilateral decisions, limits on the CEC’s powers and the constitutional need for the ECI’s institutional answerability

High constitutional offices, such as the President of India and state governors, are protected from criminal proceedings during their term of office (Article 361). No criminal proceedings can be launched against the judges of the Supreme Court and of the high courts without the sanction of the Chief Justice of India. However, the President, the judges of the Supreme Court and the judges of high courts can be removed from office through a special procedure provided under Articles 61, 124(4) and 218, respectively, of the Constitution.

As far as the Election Commission of India (ECI) is concerned, although the procedure to remove the Chief Election Commissioner (CEC) is similar to the one applicable to judges of the higher judiciary, the Constitution does not provide for any protection to the members of the ECI from criminal proceedings. However, the Government of India, through the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which replaced the previous Act of 1991, has provided immunity to the CEC and the Election Commissioners, not limited to the term of their office, from initiation of criminal proceedings.

There can be two possible reasons for such immunity. One is that they must be free from all external pressures while discharging their constitutional obligation to conduct free and fair elections. The other reason, which the prevailing circumstances suggest, is that this ruling establishment realised that the said office needs such immunity if it is to be used for its partisan political interests, assuring those holding it that their actions cannot be subjected to any criminal proceedings.

This perhaps has emboldened the CEC to act in a manner that has now sparked public outrage.

A blanket, lifelong immunity for the CEC and the ECs is beyond the constitutional scheme, especially when no such limitless immunity is available to any other constitutional authority in India. This, of course, is a subject matter of challenge before the Supreme Court.

The Act of 2023 also provides that ECs should endeavour to take unanimous decisions; in the absence of unanimity, majority decisions will prevail. An investigative journalist’s report recently revealed that the CEC was taking unilateral decisions, resulting in unauthorised deletions and additions of lakhs of voters. This was done through a process reportedly opposed by the two ECs.

The most serious objection raised by the two ECs is that the control of the Election Commission’s unified portal, ECINET, was centralised, and the deletion of voters was obviously done at the instance of the Commission instead of at the level of the Electoral Registration Officer (ERO), Deputy Electoral Registration Officers (DEROs) and the Assistant Electoral Registration Officers (AEROs) through ERONET. Centralising ECINET appears to have restricted field access. This is evident in Goa, where the 97 eligible voters could not be added to the electoral rolls because the AERO could not access ECINET.

The second objection raised by the two ECs is that the CEC unilaterally changed Form 6, which originally did not require voters to give particulars of their parents and grandparents, although the power to amend Form 6 vests only in the central government.

The third objection relates to the authorisation to file lakhs of appeals for the further deletion of voters in West Bengal; details of these appeals are still not public. The outcomes of the limited scrutiny of deleted names by the tribunals in West Bengal demonstrate that close to 93 percent of the voters were wrongly deleted. Obviously, directions may have been issued at the level of the CEC for deletion of particular names. Such unilateral actions by the CEC have raised public suspicion that the procedures adopted by him are clearly intended to help the ruling party win elections.

Another issue relates to the direction that those who may have voted earlier but whose names did not appear in the electoral rolls of 2002 are required to fill Form 6, which is meant only for new voters. One requirement of Form 6 is that the individual seeking registration must declare that he has never voted before. Directing such voters, who voted earlier but are now seeking to register afresh, requires them to make a false statement that they have never voted before.

These issues raise serious doubts about the integrity of the CEC. For this reason, the youth of India have asked for his immediate resignation. Even the Bharatiya Janata Party's allies have said in public statements that the Commission must clarify the doubts raised about its conduct following the Indian Express revelations. Even more surprising is the statement issued by the Commission on September 26, 2026, in which the allegations made and the findings of the Indian Express seem to have been accepted, as the Commission now seems to suggest that it will change its way of functioning. To address the alleged discrepancies, booth-level officers (BLOs) will visit the doors of such persons who have received notices to collect documents and upload them on ECINET for the ERO's decision. Such persons will not be called for a hearing before the ERO or AERO. That would happen only in exceptional cases. Facilitation for online hearing will be strengthened. Further, field officers will have access to ECINET. This is a clear admission of the fact that such access was not available before; otherwise, the allegation recorded by the two ECs would have been denied emphatically.

It seems the Government of India has been able to persuade the two ECs to join the statement to save the CEC from the ignominy of his resignation. Such machinations cannot justify the CEC's conduct. Resignation is not just desirable but necessary. The September 26 statement is not enough to dispel public doubts about whether elections in West Bengal, Bihar and elsewhere were rigged at the CEC's behest.

Kapil Sibal | Senior lawyer, member of Rajya Sabha

(Views are personal)

(On X @KapilSibal)

The New Indian Express

www.newindianexpress.com

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