| Introduction: Contextual Introduction Body: What are arguments for and against the removal of absolute immunity granted to the President and Governors under Article 361? Conclusion: Way forward |
The Supreme Court of India is re-examining Article 361, which grants immunity to the President and Governors from criminal prosecution during their term of office. This review stems from a case involving allegations of sexual harassment against West Bengal Governor C.V. Ananda Bose by a Raj Bhavan employee. The petitioner argues that this “blanket” immunity undermines fairness and constitutional morality, especially when fundamental rights are violated.
Arguments in Favor of Removal
- Accountability and Rule of Law: The principle of equality before the law is fundamental to a democracy. Granting absolute immunity to the highest constitutional functionaries undermines this principle and creates a hierarchy of justice.
- Abuse of Power: In the absence of any legal recourse, there’s a risk of misuse of power by the President or Governors. Immunity can shield them from actions that might be detrimental to the public interest or individual rights.
- Public Confidence: Protecting individuals in high office from facing legal consequences for their actions can erode public trust in the governance system. Transparency and accountability are essential for maintaining public faith.
- International Standards: Many democratic countries have mechanisms to hold their heads of state accountable, even during their term of office. India’s position in this regard appears to be an anomaly.
Arguments Against Removal
- Smooth Functioning of Government: Immunity ensures that the President and Governors can discharge their duties without fear of harassment or undue interference. It protects them from frivolous litigation that could hamper their ability to govern effectively.
- Dignity of Office: The President and Governors occupy positions of immense responsibility and dignity. Granting immunity is seen as a way to uphold the sanctity of these offices.
- Political Stability: Removing immunity could lead to frequent legal challenges and political instability. It might create a situation where the executive is constantly under threat of legal action.
- Complexities of Proof: Proving criminal charges against individuals in such high offices can be extremely difficult, given the nature of their duties and the evidence required.
Conclusion
The Supreme Court’s consideration of this issue, especially in the context of fundamental rights and potential misuse of immunity, underscores the complexity and significance of this constitutional provision. Any decision on this matter would need to carefully consider these competing interests to arrive at a solution that upholds both governance efficiency and constitutional integrity.
