"Functional immunity is essential for constitutional functionaries, but unqualified immunity erodes accountability." Examine this with reference to Section 16 of the CEC & ECs Act, 2023.

Section 16 of the CEC & ECs Act, 2023 bars courts from hearing civil or criminal proceedings against anyone who "is or was" CEC or EC for acts done "acting or purporting to act" in official duty [1]. It rightly shields the poll referee. However, it has no safeguards, which pushes it from functional towards unqualified immunity.

Why functional immunity is essential

• Fearless decisions: Action under the Model Code of Conduct, electoral-roll revisions and disqualification opinions hurt powerful actors. Without a shield, cases filed in several states at once could intimidate the CEC.
• Basic-structure link: Free and fair elections need an independent EC. This is the reasoning behind Anoop Baranwal (2023) [2].
• Precedent: The Judges (Protection) Act, 1985 uses almost the same "is or was" wording [3].
• Limited scope: Writ review of EC decisions under Arts. 32 and 226 survives. The CEC can still be removed like a Supreme Court judge (Art. 324(5)).

How Section 16 slides into unqualified immunity

• No safety valve: Sec. 3(2) of the 1985 Act keeps the State's power to act against judges [3]. Section 16 gives no authority any such power [1].
• No sanction route: Other public servants can be prosecuted once sanction is given under Sec. 218 BNSS. Section 16 is a wall, not a filter.
• Lifelong, with no mala fide exception: "Purporting to act" widens its reach. After retirement, removal is no longer possible, so no remedy remains.
• Executive-dominated appointment: The PM and a minister nominated by the PM form a 2:1 majority on the selection panel [4]. The Supreme Court delivered a split verdict on this panel in September 2026 [2]. Immunity given to an executive-chosen referee looks partisan.
• Thin scrutiny: The clause came in as a late government amendment [5], shortly before Parliament passed the Bill in December 2023 [6]. The Supreme Court issued notice on a challenge to it but declined a stay [7].

Way forward

• Add a clause like Sec. 3(2) of the 1985 Act, plus a mala fide exception.
• Allow prosecution only with sanction from a neutral authority, such as after consulting the CJI (K. Veeraswami, 1991).
• Rebalance the panel to PM, LoP and CJI, as the Law Commission's 255th Report recommended [8].

Section 16 is sound in purpose but has no checks. Redrafting it with a sanction route, a mala fide exception and a balanced panel would protect the EC's independence without ending accountability. That would uphold Art. 324 and people's trust in free and fair elections.