Context:

A three-judge Bench headed by the Chief Justice of India D.Y. Chandrachud has impleaded the Union government and sought assistance from the Attorney General of India to decide if a “blanket” immunity granted under Article 361 to the President and Governors, while in office, from criminal proceedings undermines fairness, constitutional morality and violates fundamental rights to equal protection of the law and fair trial.

King Can Do No Wrong

The complainant, identified as 'XXX' to protect her identity, contends that the "absolute immunity" provided to Governors is rooted in the outdated notion that the "King can do no wrong." She argues that her complaint has been treated dismissively by the police due to this immunity clause, leaving her with no recourse until the Governor leaves office. She fears that this delay may ultimately prevent her from obtaining justice. Consequently, she has requested the Supreme Court to direct the West Bengal police to investigate her complaint and to establish guidelines to clarify the extent of this immunity.

Role of a Governor in India

In India, governors play a crucial role in upholding and enforcing the Constitution and laws at the state level. As outlined in Articles 153 and 154 of the Constitution, governors are tasked with ensuring the effective functioning of state governments within the constitutional framework.

Article 154 states, "The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him, in accordance with the Constitution of India."

Understanding Governors' Immunity

Article 361

●     Non-Answerable to Courts

Article 361 of the Constitution provides that the President and Governors are not answerable to any court for actions performed in the exercise of their official duties. However, Article 361(1) includes:

○     The first proviso allows the President’s conduct to be reviewed by a court, tribunal, or body designated by Parliament for impeachment proceedings under Article 61.

○     The second proviso clarifies that this immunity does not preclude a person from suing the central or state government.

●     Protection from Criminal Proceedings

The specific issue in the Supreme Court case involves Article 361(2), which states that "no criminal proceedings whatsoever shall be instituted or continued against the President or the Governor of a State in any court during his term of office." The Court is assessing whether this immunity is "unfettered or unbridled" and under what circumstances criminal proceedings can be initiated against a President or Governor.

●     Exemption from Arrest

Article 361(3) prohibits the issuance of arrest or imprisonment orders against the President or Governor while they are in office.

●     Protection from Civil Proceedings

Article 361(4) prevents the filing of civil lawsuits against the President or Governor for personal actions during their term of office. Any such lawsuit may only be filed two months after giving written notice, which must detail the nature of the proceedings, the cause of action, the party initiating the lawsuit, and the relief sought.

Constituent Assembly Debates

During the Constituent Assembly debates in September 1949, concerns were raised about the phrase “during the term of his office” in Article 361(2). A Member questioned whether this provision would allow a President or Governor to avoid accountability for criminal acts by merely remaining in office. This question was left unresolved.

Arguments Presented

Petitioner's Argument

The petitioner argues that the immunity under Article 361(2) does not extend to criminal acts that undermine fundamental rights or “strike at the roots” of a citizen’s rights. The alleged actions of Governor Bose infringe upon her right to life under Article 21 of the Constitution. She contends that Article 361’s immunity should not obstruct the police's ability to investigate or name the alleged perpetrator in the complaint/FIR. The immunity is not intended to protect illegal acts, such as sexual abuse.

Judicial Precedents

●     Dr. SC Barat vs. Hari Vinayak Pataskar Case (1961): This case distinguished between the Governor's official and personal conduct. While official actions are fully immune, civil proceedings can be initiated against personal actions with prior notice of two months.

●     Rameshwar Prasad vs. Union of India Case (2006): The Supreme Court recognized the Governor's complete immunity for constitutional actions under Article 361(1) but allowed for judicial scrutiny of actions deemed malafide. This case established mechanisms for accountability while protecting official actions.

●     Madhya Pradesh High Court, Vyapam Scam Case (2015): The court upheld that Governor Ram Naresh Yadav had absolute protection under Article 361(2) from malicious publicity during his tenure. His name was removed from the investigation to prevent undue legal harassment, preserving the office's integrity.

●     State of UP vs. Kalyan Singh Case (2017): The Supreme Court confirmed that Kalyan Singh, then Governor of Rajasthan, was entitled to immunity under Article 361 during his tenure. Charges related to the Babri Masjid demolition were to proceed only after he ceased to be Governor, reinforcing the protection of the Governor’s duties and dignity.

●     Telangana High Court Judgment (2024): The court noted that there is no express or implicit bar in the Constitution excluding judicial review of actions taken by the Governor. It emphasized that Article 361 immunity is personal and does not preclude judicial review.

Conclusion

The Supreme Court's review seeks to determine whether the immunity granted under Article 361 to the President and Governors is excessively broad, potentially undermining fairness and constitutional principles. The outcome will clarify the limits of this immunity, particularly in cases involving serious allegations that affect fundamental rights. The immunity granted to the President and Governors is a delicate balance between the need for effective governance and the principle of accountability. While the office-holders must be shielded from undue interference, there is a need to ensure that the immunity does not become a shield for abuse of power. A nuanced approach that recognizes the importance of both institutional effectiveness and individual rights is essential.

Source: The Hindu