What is Governor’s Immunity under Article 361, Set to Be Reviewed by Supreme Court?

Why in news?

It’s pertinent to mention here that the Supreme Court of India has recently acceded to examine the constitutional protection to the state Governor under the Article 361 following the plea to redefine the extent of such protection. This decision can possibly have a large impact on the purpose and responsibilities of the Governors in India.

Understanding Governor’s Immunity under Article 361

• By Article 361 of the Indian Constitution, it could be seen that the President as well as the Governors of states enjoyed absolute immunity from criminal prosecution as well as judicial proceedings being taken against them for action that they take during their term of office.
• In a more precise manner, it is clearly stated that the President or any Governor shall not be liable to be questioned in any court for the discharge and performance of the functions and responsibilities of his office, or for any action taken, or that is undertaken, for the performance of those functions and responsibilities, unless through the parliament’s impeachment means .
• In addition, Article 361(2) and 361(3) make it unconstitutional to prosecute or maintain a criminal case, or to effect any process of arrest or imprisonment against the President or Governor during his term of reference.
• The Supreme Court is now poised to determine these clauses especially “criminal proceedings” and “process for arrest or imprisonment” for the Constitution.

Origins of Governor’s Immunity

• This principle of immunity for heads of state originated from the Latin principle “rex non potest peccare,” translated loosely as the king can do no wrong; related to English Common Law.
• Even in the debates of The Constituent Assembly in 1949 they had started raising issues over the quantum of this immunity. Assembly Member H V Kamath further posed to know whether the immunity would extend for the full term of the President or Governor or he would be immune only while holding office.
• Nevertheless, the foregoing questions were not a subject of extensive debate on aspects concerning criminal immunity as the article was passed without much discussion.

Judicial Interpretation of Article 361

• Over the years, courts have interpreted Article 361 in various contexts:Over the years, courts have interpreted Article 361 in various contexts:
  • State vs Kalyan Singh & Ors (2017): The Supreme Court stalled the trial of then Rajasthan governor Kalyan Singh in the Babri Masjid demolition case under the Article 361 immunity. The court restricted that charges can be framed and proceeding can continue as soon as he is out of the Governor post.
  • Vyapam Scam (2015): Taking cue from the Madhya Pradesh High Court in Modern Dental College and Hospital & others v. State of Madhya Pradesh 2009 (13) SCC 589, it can be interpreted that the protection afforded under clause (2) of Article 361 is absolute for the Governor to protect the dignity of his office. It enabled the probe to proceed against others while ‘erasing’, the Governor’s name from the FIR till he demitted office.
  • Rameshwar Prasad vs Union of India (2006): The Supreme Court had to consider the Governor’s conduct in recommending the dissolution of the Bihar Assembly and had upheld that although the Governor cannot be sued in a civil court for an act done or purporting to be done under Article 361(1) of the Constitution, yet the conclusions arrived at are receivable by a judicial review only if they are mala fide.
• In these cases the courts have attempted to strike a blow as to the establishment of dignity and independence of the Governor’s office on the one hand and accountability and justice on the other.

Why Governor’s immunity is under threat

• The present petition in the Supreme Court also has apprehensions that absolute immunity may result in rights’ infringement and obstruct justice.
• In light of the petitioner’s statements, if criminal actions cannot be prosecuted until the Governor is no longer in office it could compound the problem; leads could be lost, and the legal process of a case would be hindered.
• Furthermore, in the case of existing allegations against Governor C V Ananda Bose, there are many controversies related to immunity that can protect any person from serious charges.
• This has focused attention on it, while underlining the importance of drawing a proper line as to exactly what one is immune from in order to avoid any tendency towards the abuse of the privileges of the immunity.
• This means that the Supreme Court’s decision to review this aspect of Article 361 may actually transform and establish the basic parameters on how constitutional heads are made to account for their actions within the context of the executive privilege.

Global Perspectives on Executive Immunity

• Executive immunity is another example of a relatively heated issue not only in India but all around the world.
• In the most current development, the US Supreme Court has made a decision that like any other former US President the individual under consideration is immune from criminal suits regarding actions conducted in his official capacity, but not regarding his personal conduct.
• This decision is a continuation of the global debate on the scope and provisos of absolute immunity which the executive enjoys.

In many countries, the range of the immunity enhancement of the executive branch is constantly reviewed in order to exclude the possibility of being used for the purpose of escaping the punishment. For example in South Korea particulars who occupied the presidential seat been arrested for offences committed while they were still in office and out of office signaling a more rigid position towards executive impunity.

The Case for Revisiting Governor’s Immunity

• The evaluation of Governor’s immunity is relevant and has to be considered now.
• Thus, it can be concluded that as the democratic systems change, it is necessary to adapt the mechanisms that can regulate the forces within a state and prevent the abuse of power.
• Immunity granted under Article 361 was intended to preserve the sanctity of nobler offices and to avoid structures for effective performance of its tasks.
• But what must be emphasized is that such protection must not include the safety or the immunity of anyone from prosecution for heinous criminal offenses.
• Thus, by revisiting the provisions of Article 361 the Supreme Court has a chance to elaborate and possibly restrict the certain immunity.
• Such components could include stating that immunity only covers official activities of an officer carried out in good faith and does not extend to personal misconduct or in bad faith acts of the officer.

Potential Implications of the Supreme Court’s Review

• If however the Supreme Court were to confine the meaning and operation of immunity under Article 361 then Governors and possibly other senior officials would be held to be more accountable.
• This would make sure that those people in such positions are not immune to proper lawful investigations.
• Another benefit of such a decision would involve increased understanding and righteousness among individuals in the public domain because they would know that they cannot exercise immunity from the law.
• This would be a giant step in the right direction in enhancing the sector of rule of law with an added bonus of ensuring equal treatment of law regardless of the position of the accused to be brought to book.

Conclusion

• Supreme Court proceeding on Article 361 for stripping Governor’s immunity becomes a major legal reform that has a potential of altering accountability principle related to constitutional heads in India.
• When deciding on this issue the court will answer such important questions as the extent and nature of immunity of the executive branch in the contemporary global environment thereby setting up major premises of future developments of governance and legal accountability.
• This review occurs at a very appropriate time and is consistent with the dynamics of democratisation where accountability and justice processes are now expected to be accompanied by respect and dignity of elected office bearers.
• India is going to look out for the results of this review and their consequences are bound to transform the form and structure of governance and laws of the nation.

FAQS

Q1: What is Article 361 of the Indian Constitution?
Ans: Article 361 provides the President and the Governors of states immunity from criminal prosecution and judicial scrutiny for actions performed while in office. It states that they cannot be answerable to any court for the exercise of their powers and duties, nor can criminal proceedings be initiated against them during their tenure.

Q2: Why is the Supreme Court reviewing Governor’s immunity under Article 361?
Ans: The Supreme Court is reviewing the scope of this immunity following a petition by a contractual employee of the West Bengal Raj Bhavan, who accused Governor C V Ananda Bose of sexual harassment. The petitioner argues that absolute immunity can impede justice and violate rights.