New Delhi: A petition has been filed in the Supreme Court seeking that, as in the case of an ordinary accused person, police investigation, collection of evidence, and court proceedings should also be conducted against Chief Election Commissioner Gyanesh Kumar.
In the petition filed by Supreme Court lawyer Shailendra Mani Tripathi on behalf of advocate Chand Qureshi, it is stated that, “There is no reasonable connection between the allegations made against Gyanesh Kumar in the newspaper and his official responsibilities.
When there is no logical or legal connection between the act done and the official duty, the statutory protection provided under Section 16 of the Chief Election Commissioner and Other Election Commissioners Act, 2023 becomes completely ineffective.
Form 6, which is used to enroll new voters, has been amended not by parliamentary law or by legislative amendment. This has been done without the approval of the other two Election Commissioners and the Chief Electoral Officer of West Bengal. Because of this unilateral action, and because of software glitches, many people’s voting rights have been taken away.
Deliberately altering documents, creating forged documents, or disrupting the constitutional electoral process while carrying out official duties cannot be regarded as part of those duties or as something normal. The mere status of being a public servant does not grant legal authorization or protection for acts done with malicious intent.
From a constitutional perspective, the Election Commission of India has no immunity from criminal cases. Under Article 361 of the Constitution, only the President and Governors are granted complete immunity from criminal proceedings and arrest during their term of office.
Article 324 of the Constitution provides only tenure protection to the Chief Election Commissioner. It does not grant immunity from personal criminal liability. The Election Commission functions subject to the rule of law. It is not an institution that can create and operate under its own separate laws.
In Section 16 of the 2023 Act, no explicit prohibition is stated against police investigation or arrest action. It has been stated that when voter lists are deliberately altered in a manner that violates the constitutional mandate to conduct free and fair elections, legal protection does not apply to the person who did so.
