Who Referees the Referee? Section 16, Functional Immunity and the Missing Check in India's Election Commission Law

Two Words That Turn a Shield Into a Wall: "Purporting to Act" Section 16

says that no court shall entertain or continue civil or criminal proceedings against anyone who is or was a CEC or Election Commissioner for anything done or said while acting or purporting to act, in official duty. In plain English, the shield is tied to the job, it follows the officer into retirement and it covers not only what the duty requires but anything done in the duty's name.

The rule as written - It is functional, not personal. The protection covers duty-linked conduct only.

Calling it "lifelong blanket immunity", as the Leader of the Opposition did, overstates the text. What is true is that the words "is or was" make the protection continue after the commissioner leaves office.

• What it does not bar: judicial review of the Election Commission's decisions under Articles 32 and 226, election petitions under Article 329(b) or removal of the CEC through the same process as a Supreme Court judge.
• What it does bar: a personal civil suit or criminal case against the commissioner.

Why a

referee might need it The Election Commission rules against every party in turn, through Model Code notices, symbol disputes and roll revisions. Without protection, each losing side could file criminal complaints across many districts, turning litigation into a form of harassment. Judges have comparable protection under the Judges (Protection) Act, 1985. The basic logic of shielding a neutral umpire is defensible.

Where the

design breaks An immunity shield is only as legitimate as the process for choosing the people who hold it. In Anoop Baranwal (2023), the Supreme Court prescribed a selection panel of the Prime Minister, the Leader of the Opposition and the Chief Justice of India, to operate until Parliament legislated.

The 2023 Act replaced the Chief Justice with a Union Cabinet Minister nominated by the Prime Minister, which gives the government a built-in 2-1 majority. The immunity clause was not part of the Bill when the Law Minister introduced it in August 2023; it was added during the Bill's passage.

The text says one thing and the structure does another. The same Act loosened the check on who becomes a commissioner and tightened the shield over what commissioners can do. The phrase "purporting to act" widens that shield further: an act outside lawful duty may still be protected if it was done in the duty's name.

For ordinary public servants, Section 218 of the Bharatiya Nagarik Suraksha Sanhita requires government sanction before prosecution, which is a filter. Section 16 shuts the door outright.

Where it stands In January 2026, a Bench led by Chief Justice Surya Kant issued notice on Lok Prahari's challenge to Section 16 but refused to stay it.

On 23 September 2026, a two-judge Bench split on whether the challenge to the 2023 law should go to a Constitution Bench.

For the exam: analyse independence and accountability together, as two sides of one design question. A shield for the umpire is defensible. A shield combined with an executive-dominated selection process is what the courts are now being asked to examine.