HOW INDIA’S IMMUNE ‘ELECTION COMMISSION’ DEFIES GLOBAL NORMS

The Election Commission of any democratic country is meant to be the impartial umpire of the democratic contest as the legitimacy of a government rests entirely on the credibility of the elections that brings it to power. 

But most shockingly, even after being ordered by the Supreme Court to bring in place a perfectly impartial mechanism for selection of the ECI members, the political executive of India not only dared throw out the CJI from the selection panel, but also made the fancifully handpicked Election Commissioners legally so immune as they can commit any unlawful act and get away without having to face any challenge in court. This very sinful act of the political executive has not only severely compromised the independence of the ECI, it has also grabbed sweeping control over the enslaved umpires who would not think once even in dreams of displeasing the political masters. The chief election commissioner is now Superman, the second one on his side is Spiderman; but the leader of the opposition is an immaculately gagged warrior with his limbs tied down mercilessly. The two ‘Yes men’ are so heavily shielded from future accountability as no criminal or civil case would stand against them during and after the tenure. The ECI thus is an extension counter of the political executive.

The sinful ‘Section 16’ of the skewed Act is most dangerous

For decades, the appointment of the Chief Election Commissioner and Election Commissioners was an executive prerogative, a loophole left open by the framers of the Constitution. Recognising the danger this posed to free and fair elections, the Supreme Court of India stepped in during March 2023. and mandated that until Parliament enacted a law, a bipartisan, independent panel comprising the Prime Minister, the Leader of the Opposition, and the Chief Justice of India would appoint the commissioners. The presence of the CJI was a vital neutraliser, ensuring that neither the government nor the opposition could unilaterally force an appointment. Without losing time they made an Act which deleted the Chief Justice of India from the list, and replaced him with a servile Union Cabinet Minister nominated by the Prime Minister. The Leader of the Opposition got reduced to a helplessly dissenting bystander. Critics raised hue and cry arguing that by removing the institutional counterbalance of the judiciary, the political executive made itself the supreme authority in the sensitive matter of ‘election’ and ‘elector’ management. Further, the most sinister thing which escaped public notice at first is the enormously dangerous ‘Section 16’ of the new Act, which ensures permanent protection for the appointees. This most damning ‘section’ explicitly states that no court can entertain or continue any civil or criminal proceedings against a serving or former CEC or EC for any act, thing, or word done in the discharge of their official duty. While it is standard practice to offer bureaucrats a degree of legal protection requiring government sanction for prosecution, ‘Section 16’ elevates Election Commissioners to a level of immunity typically reserved for the judges of the Constitutional Courts of the country. As fundamentally, the ECI is an administrative and regulatory body, not a judicial one, providing its members with blanket, lifelong immunity from civil and criminal proceedings creates a dangerous vacuum of accountability. Ordinary people who are expressing unprecedented outrage against the skewed selection panel have not yet realised that the special protection to the super creatures is the worst ever thing to have happened in a democracy.

Legal experts and civil rights groups have raised intense alarms over this provision, which is currently being challenged in the Supreme Court. They point out that a CEC or EC could theoretically execute highly partisan or legally questionable administrative actions- such as arbitrary mass voter deletions, selectively ignoring campaign finance violations, or displaying blatant bias in election scheduling-and remain entirely immune from prosecution, claiming the actions were part of their ‘official duty’. 

When constitutional functionaries are stripped of the fear of legal repercussions for misconduct, the temptation for misuse of office grows exponentially. By guaranteeing that ECI officials cannot be dragged into court for their administrative decisions, the law shields them from public interest litigations and criminal probes during and long after their tenure. The political executive has effectively erased the institutional neutrality mandated just months prior by the Supreme Court Constitution Bench. Critics are aghast that the lifelong bar on courts to fix rogue commissioners do lack a ‘good faith’ condition. This situation arguably surpasses even the constitutional protections afforded to the President and Governors under Article 361. Legal experts argue that elevating administrative officers to this level of most unusual protection creates a profound accountability vacuum. They warn that under this statutory shield, the severest abuses of power- such as alleged mass voter disenfranchisement or the selective enforcement of campaign rules- become legally untouchable if categorised as ‘official duty’.  

A democracy functions on a delicate system of checks and balances. Unfortunately, 2023 ECI Act has systematically neutralised two critical checks on electoral integrity: it removed the judiciary from the appointment process, and it made the courts powerless. They can never hold the commissioners accountable for official wrongdoings, no matter what. When the law dictates that the referees cannot be prosecuted for the calls they make on the field, the fairness of the entire tournament is thrown into question. For opposition parties, civil society, and the voting public, this structural design casts a long, chilling shadow over the electoral process.

An Election Commission that owes its appointment entirely to the political executive, and enjoys absolute legal immunity for its actions, naturally turns an arm of the government rather than an independent watchdog. Without a fiercely independent ECI, the promise of free and fair elections, the very lifeblood of the republic, is severely compromised. The true danger of the 2023 Act lies not just in the power it gives the government today, but in the institutional vulnerability it permanently embeds into the democratic machinery for the future.

In mature constitutional democracies, election management bodies are deliberately insulated from executive capture through multi-party consensus and judicial oversight. In South Africa, the selection panel for the Electoral Commission is headed by the Chief Justice and requires a parliamentary supermajority. In Mexico, commissioners of the National Electoral Institute must secure a two-thirds legislative majority, purposefully preventing any ruling regime from unilaterally stacking the bench.

Crucially, global democratic norms never grant election chiefs blanket, lifetime shields against criminal conduct. From Canada to the United Kingdom, electoral heads face strict anti-corruption codes, judicial review, and severe criminal liability if they commit misdemeanours or abuse official authority. No established constitutional order permits election administrators to operate entirely above the law.

Only an executive intent on subverting institutional checks creates a brazen 2-to-1 selection panel completely dominated by itself while tossing out judicial neutrality. Pairing such unilateral appointment power with statutory immunity from criminal prosecution reduces democratic oversight to an absurdity. When the ruling executive handpicks the umpires and then grants them statutory protection from prosecution for their actions, the pretence of free, fair, and impartial elections collapses. 

For the opposition parties and democratic watchdogs like the Association for Democratic Reforms- who have actively challenged Section 16 in the Supreme Court-these dual legislative manoeuvres are seen as inherently threatening to the republic’s foundation. The executive has not just brazenly captured the Election Commission, it has placed it above the law. By trading absolute immunity for absolute control, the government has engineered a rigged system where handpicked umpires are entirely shielded from justice, and democratic accountability is permanently erased. 

The bottom line is clear : the political executive has guaranteed one terrifying reality: the frighteningly immune referees of our democracy are no longer accountable to the law.