GOVERNOR’S IMMUNITY
The Supreme Court on July 19 agreed to hear a plea seeking to redefine the contours of the constitutional immunity enjoyed by the Governor of a state.
Article 361 of the Constitution shields the President and Governor from criminal prosecution, and bars any judicial scrutiny of their actions.
THE CASE:
A three-judge Bench — comprising Chief Justice of India DY Chandrachud, and Justices J B Pardiwala and Manoj Misra — took up the issue after a petition was moved by a contractual woman employee of West Bengal Raj Bhavan. She has alleged sexual harassment by Governor C V Ananda Bose.
THE CONSTITUTIONAL PROVISIONS
Article 361 states that the President, or the Governor of a state, “shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties”, unless it is by Parliament for impeachment from office.
The provision further says “no criminal proceedings whatsoever shall be instituted or
continued”; “no process for the arrest or imprisonment” can take place while the
President, or the Governor, holds office.
WHAT IS THERE FOR THE COURTS?
The interpretation of these phrases — in Article 361(2) and 361(3) —
- “criminal proceedings” and
- “process for the arrest or imprisonment”
is what is now before the SC. The court will consider whether that process covers a registration of FIR, initiation of a preliminary inquiry, or a magistrate taking cognisance of an offence, which is the technical start of a criminal case.
ORIGIN OF GOVERNOR’S IMMUNITY
The protection given to the President and the Governor can be traced to the Latin maxim rex non potest peccare or “the king can do no wrong”, which is rooted in English legal traditions.
WHAT HAPPENED IN THE CONSTITUENT ASSEMBLY?
The Constituent Assembly discussed the introduction of Article 361 — or Draft Article 302 as it was known then — on September 8, 1949. On criminal immunity, Assembly Member H V Kamath from the Indian National Congress raised certain prescient questions.
- In case the President, or the Governor, commits a crime, he asked “Does this clause mean that no proceedings can be instituted against him (the President or the Governor) during the whole prescribed term, or whether it means while he is in office only”.
- He also asked if the President should remove “a Governor or a Ruler committing a criminal act” in case a prima facie case is made against the Governor concerned.
However, the article was adopted without any further debate on criminal immunity.
JUDICIAL INTERPRETATIONS
- State v/s Kalyan Singh & Ors:
- The SC did so in the 2017 criminal case — State vs Kalyan Singh & Ors — concerning the Babri Masjid demolition in 1992. The court delayed the trial against then Rajasthan Governor Kalyan Singh, who was one of the accused in the case.
- In its order, the SC said being the Governor, Kalyan Singh “is entitled to immunity under Article 361 of the Constitution as long as he remains Governor of Rajasthan. The Court of Sessions will frame charges and move against him as soon as he ceases to be Governor”.
- Vyapam Scam Case:
- In 2015, the Madhya Pradesh High Court categorically held that Article 361(2) “guarantees absolute protection from any malicious campaign or publicity against the Head of a State, so as not to undermine the solemnity of that office.”
- The obsrvation came in a case pertaining to the Vyapam scam. Then Governor of Madhya Pradesh Ram Naresh Yadav was one of the accused in the scam, and the HC had to determine if the registration of an FIR against him would amount to criminal proceedings being “instituted” in the case.
- In its ruling, the HC allowed investigation in that FIR against other accused, while “effacing” the name of the Governor till he occupied the office.
- As Yadav died in November 2016, the SC did not rule in appeal.
- Rameshwar Prasad v/s UoI:
- In the case, the SC had to deal with the Governor’s immunity in civil cases after recommending the Bihar Assembly’s dissolution in 2005.
- The court said while the Governor enjoys “complete immunity” when exercising their powers under Article 361(1), this immunity “does not, however, take away the power of the Court to examine the validity of the action including on the ground of malafides (actions taken in bad faith)”.
- The SC in that case examined the Governor’s actions in discharging his constitutional powers, which can be placed on a higher threshold compared to acts outside the discharge of constitutional or any official duties.
THE GLOBAL PRECEDENTS
The debate on whether executive immunity is a blanket protection has been taking place in other countries as well.
The US Supreme Court on July 1 decided that former President Donald Trump, or any former US President, is entitled to “absolute immunity” from criminal prosecution for official acts but not unofficial or personal acts.
This came as a huge relief for Trump, who faces a criminal case for allegedly attempting to subvert the 2020 presidential election results, while he was in power.
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