A three-judge Bench headed by the Chief Justice of India D.Y. Chandrachud has been hearing a case against the blanket ‘criminal immunity‘ provided to the President and Governors under Article 361 of the constitution. The court has impleaded the Union government and sought assistance from the Attorney General of India to decide if a ‘blanket‘ immunity from criminal proceedings granted under Article 361 to the President and Governors while in office, undermines fairness, constitutional morality and violates fundamental rights to equal protection of the law and fair trial.
The question regarding blanket criminal immunity under Article 361, has come up in a petition filed by a contractual woman employee with the Raj Bhavan who has accused West Bengal Governor C.V. Ananda Bose of sexual harassment and molestation.
What are the provisions of Immunity for the President and Governor under Article 361 of the Constitution?
The President and Governor are provided immunity under Article 361 of the Constitution. The following are the provisions dealing with immunities-
| Article 361(1) | The President, or the Governor, shall not be answerable to any court for the exercise and performance of the powers and duties of his office. However, a. The conduct of the President may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under Article 61 (violation of the constitution). b. The immunity cannot stop a person from suing the Centre or State concerned. |
| Article 361(2) | 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. |
| Article 361(3) | No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office. |
| Article 361(4) | No civil proceedings against the President, or the Governor of a State, shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity, until the expiration of two months next after notice in writing has been delivered to the President or the Governor. |
What are the arguments in support of the immunity under Article 361 of the Constitution?
1. To maintain the dignity and independence of the high offices- The immunity is intended to shield the President and Governors from frivolous and malicious prosecutions that could undermine their ability to discharge their constitutional duties without fear or favor.
2. To prevent misuse of legal process- The immunity aims to protect the President and Governors from being harassed through vexatious litigation and to ensure that they are not distracted from their official responsibilities by having to constantly defend themselves in courts.
3. To uphold the principle of separation of powers- The immunity recognizes the President and Governors as the heads of the executive branch and seeks to maintain a balance of power between the executive, legislative, and judicial branches of government.
4. To ensure continuity in governance- The immunity provides stability and continuity in governance by ensuring that the President and Governors can function without the threat of criminal prosecution during their term of office.
However, the immunity is not absolute, as it can be lifted for impeachment proceedings against the President and through civil suits against the government for actions done in a personal capacity. The Supreme Court is currently examining whether the immunity should be interpreted more narrowly to allow for criminal proceedings in cases involving violations of fundamental rights.
What are the arguments raised against the blanket criminal immunity provided to the Governor and the President?
1. Attack on citizen’s fundamental right- Critics contend that the bar on criminal proceedings under Article 361(2) should not extend to illegal acts or those which ‘strike at the roots’ of a citizen’s fundamental rights. The acts which infringe upon her right to life under Article 21 of the Constitution should not be given a blanket protection.
2. Impediment to Justice- The immunity effectively delays any investigation or legal proceedings against a sitting governor, which could compromise with the integrity of evidence, the trial process and can lead to a denial of timely justice for victims.
3. Against Modern democratic Principles and Constitutional Morality- The immunity clause has been criticized as being rooted in outdated notions, such as the idea that ‘the king can do no wrong‘. This perspective is increasingly viewed as incompatible with modern democratic principles and constitutional morality, which demand accountability and transparency from all public officials.
4. Scope of Immunity should not extend to illegal acts- There is a growing argument that the scope of immunity should not extend to illegal acts that do not pertain to the official duties of the governor. Actions such as sexual harassment are not part of the governor’s constitutional responsibilities and should therefore not be protected by Article 361.
5. Impairment of Police powers of investigation- The immunity provided to the Governor and the President impairs the police’s powers to investigate offence or even name the perpetrator in the complaint/FIR in heinous crimes done in personal capacity.
What are the various Judgements on the immunity powers of the Governor and President?
| Rameshwar Prasad vs. Union of India (2006) | This landmark judgment clarified that while Governors enjoy complete immunity under Article 361, this does not prevent judicial scrutiny of their actions, especially if those actions are alleged to be taken in bad faith (malafides). |
| Ram Naresh vs. State of Madhya Pradesh (2015) | The HC court ruled that Governor Ram Naresh Yadav had ‘absolute protection‘ under Article 361(2) from malicious publicity while in office. However, the immunity does not impede the police’s powers to investigate offenses. |
| State vs. Kalyan Singh (2017) | In this case regarding the Babri Masjid demolition, the Supreme Court ruled that then-Rajasthan Governor Kalyan Singh was entitled to immunity under Article 361 as long as he remained in office. The court indicated that criminal proceedings could only commence after he ceased to be Governor, reinforcing the notion of immunity during the term of office |
| Telangana High Court Judgment (2024) | HC observed that “there is no express or implicit bar in the Constitution which excludes the power of judicial review in respect of an action taken by the Governor”. Further, the court stated that Article 361 immunity is personal and does not exclude judicial review. |
What Should be the Way Forward?
1. Appointment of persons with eminent public life- Sarkaria commission (1988), NCRCW (2002) and Puncchi Commission (2010) have recommended appointment of persons with eminent public life as Governors. This would help prevent the misuse of immunity.
2. Judicial Scrutiny and Interpretation- The Supreme Court’s willingness to review the interpretation of Article 361 reflects a recognition that the existing provisions may require re-evaluation. The court is considering whether the immunity should be absolute or if it should allow for judicial scrutiny in cases where fundamental rights are at stake. This indicates a potential shift towards a more balanced approach that respects both the dignity of the office and the rights of individuals.
The ongoing legal proceedings and debates surrounding the immunity of governors in India underline the tension between constitutional protections for high officeholders and the imperative for accountability in cases of alleged misconduct. The Supreme Court’s examination of this issue may set significant precedents for the interpretation of constitutional immunity and the protection of individual rights in the face of alleged abuses of power.
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