Can Gyanesh Kumar Be Arrested? What Section 16 Protects CEC From Under 2023 Law

Chief Election Commissioner Gyanesh Kumar is facing demands from opposition leaders for his removal and arrest amid a fresh controversy over the functioning of the Election Commission of India (ECI). But a separate legal question has emerged over the scope of Section 16 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

The provision grants statutory protection to serving and former Chief Election Commissioners and Election Commissioners against certain civil and criminal proceedings arising from acts connected with their official duties.

However, the wording of Section 16 does not expressly use the terms “arrest”, “police investigation” or “investigation”. Its text instead states that no court shall entertain or continue specified civil or criminal proceedings.

What Does Section 16 Say?

Section 16, titled “Protection of Chief Election Commissioner and other Election Commissioners”, begins with a non-obstante clause giving it effect notwithstanding anything contained in other laws.

It states that no court shall entertain or continue civil or criminal proceedings against a person who “is or was” a CEC or Election Commissioner for any act, thing or word committed, done or spoken while, or in the course of, acting or purporting to act in the discharge of official duty or function.

Two aspects of the provision are particularly significant.

First, it expressly covers both civil and criminal proceedings.

Second, the protection extends to anyone who “is or was” a CEC or Election Commissioner, meaning the text is not limited to the period during which the person holds office.

At the same time, the provision is tied to conduct connected with the discharge, or purported discharge, of official functions.

Does It Mean Gyanesh Kumar Cannot Be Arrested?

The text of Section 16 does not establish a straightforward statutory ban on arrest.

The provision speaks specifically about whether a court can entertain or continue civil or criminal proceedings. It does not separately state that police cannot arrest a CEC or Election Commissioner, or that an investigation cannot be conducted.

Therefore, describing Section 16 simply as an “arrest immunity” would go beyond the wording of the provision.

The practical legal question in any particular case would include whether the alleged conduct falls within the section's protection because it was done, said or purportedly done in the discharge of official duty.

The interaction between the statutory protection and investigative or pre-trial steps would ultimately depend on the applicable law and judicial interpretation.

In layman's terms, he is indeed protected under Section 16, and he cannot be prosecuted. 

Therefore, in such a case of immunity, the Attorney General or the Law Minister has to permit prosecution of the CEC.

How Was The Protection Added?

The protection was not part of the Bill when it was originally introduced.

The Chief Election Commissioner and Other Election Commissioners Bill, 2023, was introduced in the Rajya Sabha on August 10, 2023. During consideration of the Bill on December 12, then Law Minister Arjun Ram Meghwal moved Amendment No. 39 to insert a new Clause 15A titled “Protection of Chief Election Commissioner and other Election Commissioners”.

The Rajya Sabha record shows that the amendment was adopted. Its wording substantially corresponds to what subsequently became Section 16 of the enacted Act.

The amendment was therefore introduced during parliamentary consideration rather than being part of the original Bill.

What Was Said About The Amendment In Parliament?

The parliamentary record shows that the new protection was presented as an official amendment during consideration of the legislation.

A Lok Sabha debate on December 21, 2023, also recorded support for the insertion of the new Clause 15A, with a member describing it as protection for the CEC and ECs against criminal or civil proceedings for acts or statements made while discharging their duties.

The Bill was subsequently enacted as the 2023 Act. Section 16 remains in force.

Why Is Section 16 Being Challenged?

The Supreme Court is examining a challenge to Section 16 filed by NGO Lok Prahari.

In January 2026, a bench headed by Chief Justice Surya Kant and Justice Joymalya Bagchi issued notice to the Centre and the Election Commission on the plea but did not stay the operation of the provision.

The petitioner's argument is that Section 16 provides excessively broad and continuing protection against civil and criminal proceedings, including after a commissioner leaves office. That is the petitioner's contention, not a finding by the Supreme Court.

As of September 24, 2026, the provision remains in force and the Supreme Court has not delivered a final ruling determining its constitutional validity or precise scope.

Why Is Gyanesh Kumar Facing Demands For Action?

The immediate political controversy concerns reported differences within the three-member Election Commission over the Special Intensive Revision (SIR) of electoral rolls and other aspects of voter-list management.

An Indian Express investigation published on September 23, 2026, reported that Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi had formally raised objections at least 14 times over 10 months to decisions and orders that they said were taken without their knowledge. The reported objections concerned issues including voter registration, deletion and restoration of names, changes to Form 6 and control and security of electoral-roll databases.

One reported dispute involved changes to Form 6, the statutory form used by people seeking registration as voters. The Indian Express reported that Joshi objected in May to changes linking the form to the SIR, arguing that the statutory form could not be altered without amending the Registration of Electors Rules, 1960. Sandhu subsequently concurred with that objection.

The Election Commission has maintained that differences of opinion and observations form part of its internal deliberative process and that its decisions, including those concerning SIR, were unanimous.

What Does The Law Say About Decision-Making Inside The ECI?

The controversy also brings Section 18 of the 2023 Act into focus.

According to the Indian Express report, Section 18 provides that the business of the Commission should, as far as possible, be transacted unanimously. Where the CEC and Election Commissioners differ, the matter is to be decided according to the majority view.

The reported objections by Sandhu and Joshi therefore concern not simply policy differences but questions about how decisions and communications of the constitutional body were being authorised.

Political Demands Are Not Judicial Findings

Opposition leaders have called for action against Kumar, including demands for his removal and arrest. These are political demands, and they do not by themselves establish that Kumar has committed a criminal offence.

The reported internal objections by two Election Commissioners likewise do not constitute a judicial finding of criminal wrongdoing.

The legal issue surrounding Section 16 is separate: whether particular alleged conduct falls within the statutory protection and what consequences, if any, the provision has for investigation or criminal proceedings.

So, What Does Section 16 Actually Mean?

The wording of Section 16 establishes a statutory bar on a court entertaining or continuing specified civil or criminal proceedings against a current or former CEC or Election Commissioner where the conduct in question falls within the provision and is connected to the discharge, or purported discharge, of official duties.

It does not expressly describe itself as an immunity from arrest.

Consequently, Section 16 does not provide a simple statutory answer that a CEC can either always be arrested or can never be arrested. Any such question would require consideration of the particular allegations, the nature of the alleged conduct, the applicable criminal procedure and how courts interpret the scope of Section 16.

For now, the provision remains operative, while its constitutional validity and scope are before the Supreme Court.