Gyanesh Kumar Has An Immunity Pin. Why A Petition Says He Can't Use It

Rahul Gandhi had a warning and a suggestion for Chief Election Commissioner (CEC) Gyanesh Kumar as he reasserted "vote chori" allegations this week. "The time will come, we will catch you," said the Leader of the Opposition, alleging a "theft of the people's mandate". Then came the advice: "Turn approver" in the case of alleged manipulation of voter rolls.

Gandhi had first aimed the warning at the three-member Election Commission in the Lok Sabha last year. Nine months on, claiming vindication after a report in The Indian Express revealed disagreement within the poll body, the Opposition has pointedly demanded the arrest of Gyanesh Kumar.

But even before running into a defence by the ruling BJP, the arrest demand ran into a legal provision: Section 16 of a law Parliament passed in December 2023. A new petition in the Supreme Court contends that the provision has a caveat.

Gyanesh Kumar Singled Out

The latest storm broke on September 23 after the IE report said Gyanesh Kumar's two fellow commissioners, Sukhbir Singh Sandhu and Vivek Joshi, had put their objections in writing at least 14 times in 10 months, four times in a single day, over issues including how the Special Intensive Revision (SIR) of electoral rolls is being carried out. Sandhu and Joshi have not spoken publicly about the objections.

Besides Rahul Gandhi, Samajwadi Party's Akhilesh Yadav, AAP's Arvind Kejriwal and Trinamool Congress founder Mamata Banerjee are some of the top leaders who have alleged manipulation of the voter rolls "to favour the BJP". The Opposition points out that over 13 crore voters have been deleted so far as part of the SIR process across several states and Union Territories, which is about 13 per cent of India's total electorate. This has been the highest in Delhi, with one in three pre-SIR electors excluded from the draft list, and one third of the remaining getting notices for "discrepancies".

Changes to Form 6, which enrols new voters, have been a subject of internal debate at the ECI too. And the petition in the Supreme Court lists this as one of Gyanesh Kumar's allegedly illegal acts outside the bounds of his duties.

The Cockroach Janta Party, the youth movement that recently forced the change of India's education minister, has also joined the chorus

The Election Commission issued a press note, signed by a deputy director-level official, saying differing views are routine in its deliberations, and that the full commission's final decisions, including those on the SIR, were unanimous. The Opposition is focused on Gyanesh Kumar, singularly.

Legal Wall That Protects Gyanesh Kumar

Stripped of legalese, Section 16 of the Chief Election Commissioner and Other Election Commissioners Act, 2023 says no court can hear a civil or criminal case against a serving or former CEC or Election Commissioner for anything done in the course of official duty.

It reads: "Notwithstanding anything contained in any other law for the time being in force, no Court shall entertain or continue any civil or criminal proceedings against any person who is or was a Chief Election Commissioner or an Election Commissioner for any act, thing or word, committed, done or spoken by him when, or in the course of acting or purporting to act in the discharge of his official duty or function."

This immunity came as part of the law that formed a committee to pick the commissioners. Before 2023, there was no selection process as such, as no law had ever been made, so the President made the appointments on the government's advice, with no role for the judiciary or the Opposition.

The law followed a March 2023 Supreme Court ruling in 'Anoop Baranwal vs Union of India', which set up an interim selection panel of the PM, the LoP and the Chief Justice of India until Parliament legislated. The law made later that year removed the CJI and placed a minister on the panel. This meant the "neutral selector" was gone, a Supreme Court bench noted in a recent hearing on the law. The PM and a minister chosen by the PM effectively outnumber the third member on that committee, the Leader of the Opposition (Lok Sabha).

As for the immunity provision for the commissioners, that was not in the original bill when Law Minister Arjun Ram Meghwal introduced it in August 2023. It was inserted four months later, and the law passed with it despite the Opposition's walkout and din at the time.

Is There A Hole In The Wall?

The immunity, however, covers only the acts done in the line of duty. A petition filed by advocate Shailendra Mani Tripathi in the Supreme Court argues that any manipulation of the voter list falls outside a commissioner's job description. "The Chief Election Commissioner enjoys no personal immunity from criminal prosecution," it states, asking that Gyanesh Kumar be investigated and tried like any other accused. It seeks prosecution under Section 32 of the Representation of the People Act, 1950, and Bharatiya Nyaya Sanhita provisions on falsification of records.

The petition also points out that the Constitution grants absolute immunity only to the President and Governors.

It cites West Bengal as its biggest point, alleging that more than 16 lakh appeals were filed in the commission's name to purge voters whom 700 judicial officers had restored to the rolls, without the knowledge of the other two commissioners. In Goa, it says 97 eligible voters were locked out of restoration despite judicial directions. The SC is yet to list the petition.

Three Years To A Head

While some pointed issues appear to have come to a head now, the Opposition has been vocal against the 2023 law and the issue of the EC's autonomy since before that. In a December 2025 speech, Rahul Gandhi even said the Congress, when it comes to power, would change the law retrospectively. He called the provision a "gift of immunity" that no PM before had handed out. The immunity shield has divided former commissioners ever since it was given. While some welcomed it as protection against politically motivated cases, Ashok Lavasa, who had resigned from the commission in 2019, called it "totally baffling".

Home Minister Amit Shah, replying to a Parliament debate on December 10, 2025, said, "We have only reiterated the provisions of the Representation of the People Act, 1951. Section 32 of the RPA and the amendment under Section 146C of the RPA 1951 state that no officer of the Election Commission, including the Election Commissioner, can face any prosecution in connection with the election process."

Rahul Gandhi said Amit Shah offered "an absurd justification".

At a rally at Delhi's Ramlila Maidan later that month, Gandhi named all three commissioners from the stage, and said they'll face action. After objections by the other two came out this week, he singled out Gyanesh Kumar, even telling him he could "turn approver" and testify against whoever in the BJP-led NDA government had made him manipulate the voter rolls.

The BJP has denied any manipulation and said the Congress is unable to digest repeated losses.

The Opposition has earlier tried other routes to have Gyanesh Kumar removed, such as seeking impeachment as in the provision for judges. In April, Rajya Sabha Chairman CP Radhakrishnan and Lok Sabha Speaker Om Birla refused to admit its notices of motion for such a move, though. The Opposition now plans another such notice, sources have told NDTV.

Since January, the Supreme Court has been examining a separate challenge to Section 16 by the NGO Lok Prahari, but has so far declined to stay the provision. On September 23, in a related development, a split verdict of a two-judge bench sent the wider fight over the 2023 law to the Chief Justice, who will decide whether a Constitution Bench should hear it.

The wall stands for now.