Free and fair elections form part of the basic structure. Against this background, discuss whether the immunity under Section 16 of the 2023 Act is compatible with institutional accountability.

Free and fair elections are part of the Constitution's basic structure, so the Election Commission of India (ECI) must be both independent and answerable [3]. Section 16 of the CEC and Other ECs Act, 2023 bars courts from hearing civil or criminal cases against a serving or former CEC or EC for acts done in official duty [2]. It fits with accountability only if it is read narrowly.

Case for immunity

• Functional independence: Ambedkar wanted the election machinery kept out of the hands of the government of the day [1]. Immunity protects commissioners from vexatious, politically motivated suits during elections.
• Quasi-judicial role: the ECI decides whether legislators should be disqualified and settles disputes over party symbols [1]. People who decide such cases usually get protection similar to judges.
• Judicial review survives: a law cannot take away the courts' writ powers under Articles 32/226. The Supreme Court has also held that arbitrary action by the ECI can violate Article 14 [1].

Concerns for accountability

• Wider than judges' protection: the Judges (Protection) Act, 1985 expressly keeps open action by the government and the higher courts. Section 16 has no such exception, and it also covers former commissioners [2].
• Government-leaning selection: the PM and a Cabinet Minister hold a 2:1 majority on the selection panel [1][2]. Immunity on top of this weakens public trust that the ECI is neutral.
• Weak internal check: an EC can be removed on the CEC's recommendation [1], so an EC who disagrees with the CEC has little protection.
• Trust deficit: allegations of wrongful voter deletions during the Special Intensive Revision are now before the Supreme Court. A blanket bar on cases risks looking like impunity.

Way forward

• Limit Section 16 to acts done in good faith, and add an exception like the one in the Judges Act.
• Replace the total bar with prior sanction from a neutral authority.
• Rebalance the selection panel, as the Goswami Committee (1990) and the Law Commission (2015) suggested [1], and give ECs the same removal protection as the CEC.

Section 16 rightly protects the ECI from intimidation, but in its current breadth it favours shielding commissioners over holding them to account. Narrowing it and pairing it with neutral appointments would let the ECI act without fear and still be accountable, as the basic structure requires.