Legal Aspects of President and Governor Immunity | UPSC

Introduction

• • A three-judge bench, presided over by Chief Justice of India D.Y. Chandrachud, is currently deliberating a case challenging the absolute ‘criminal immunity’ granted to the President and Governors under Article 361 of the Indian Constitution. 
  • The bench has involved the Union government and requested input from the Attorney General of India to determine whether this ‘blanket’ immunity from criminal proceedings, provided to the President and Governors while in office, compromises fairness, constitutional morality, and the fundamental rights to equal protection under the law and a fair trial.
  • This issue of blanket criminal immunity under Article 361 has been raised in a petition filed by a contractual female employee of the Raj Bhavan. 
  • She has accused the West Bengal Governor, C.V. Ananda Bose, of sexual harassment and molestation.

Immunity Provisions for the President and Governor under Article 361 of the Constitution

Article 361(1)

• • Non-Answerability: The President or Governor is not answerable to any court for the exercise and performance of their powers and duties.
  • Exception: Conduct may be reviewed by a court, tribunal, or body appointed by Parliament for investigating a charge under Article 61 (violation of the Constitution).
  • Lawsuits Against Government: Immunity does not prevent individuals from suing the Central or State Government.

Article 361(2)

• • Criminal Proceedings: No criminal proceedings can be initiated or continued against the President or Governor during their term in office.

Article 361(3)

• • Arrest and Imprisonment: No court can issue a process for the arrest or imprisonment of the President or Governor during their term in office.

Article 361(4)

• • Civil Proceedings: No civil proceedings against the President or Governor for actions done in their personal capacity can be initiated during their term of office, unless two months’ written notice has been given.

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Arguments in Support of Immunity under Article 361 of the Constitution

Maintaining Dignity and Independence

• • Purpose: Immunity protects the President and Governors from frivolous and malicious prosecutions, ensuring they can perform their constitutional duties without fear or favor.
  • Example: During his tenure, former President Ram Nath Kovind faced criticisms related to perceived partisanship and decisions influenced by political biases, particularly in appointments and legislative matters. The immunity provided by Article 361 allowed him to carry out his duties without being bogged down by legal distractions, preserving the dignity and independence of the highest constitutional office.

Preventing Misuse of Legal Processes

• • Purpose: Immunity prevents harassment through vexatious litigation, ensuring that Presidents and Governors are not distracted from their official responsibilities.
  • Example: During her tenure as Lieutenant Governor of Puducherry, Kiran Bedi faced controversies and conflicts with the state government primarily due to her assertive administrative style and disagreements with the Chief Minister on governance and policy implementation. Her direct intervention in administrative matters often led to clashes over the extent of her powers.  Immunity ensured that these did not translate into constant legal battles, allowing her to focus on governance.

Upholding Separation of Powers

• • Purpose: Immunity acknowledges the President and Governors as heads of the executive branch, maintaining a balance between the executive, legislative, and judicial branches.
  • Example: The role of President Ram Nath Kovind during the 2019 general elections included the crucial decision to invite the largest party (BJP) to form the government, which underscored the importance of executive independence. The controversy revolved around whether his decision respected democratic norms amid political tensions.  Immunity helps prevent judicial overreach into such executive decisions, thereby maintaining the balance of power.

Ensuring Continuity in Governance

• • Purpose: Immunity provides stability and continuity by protecting the President and Governors from criminal prosecution during their terms.
  • Example:  During the handling of the COVID-19 pandemic, the actions taken by Governors in various states were crucial. During the COVID-19 pandemic, Maharashtra Governor Bhagat Singh Koshyari’s role became critical as he intervened in the state’s lockdown measures and management strategies. His actions sometimes clashed with the state government’s policies, leading to controversies over jurisdiction and authority. Immunity ensured that these leaders could make quick, decisive actions without the immediate threat of legal repercussions, maintaining continuity in governance during a crisis.

Conditional Nature of Immunity: 

• • Immunity is not absolute and can be lifted for impeachment proceedings or through civil suits against the government for actions done in a personal capacity.
  • Example: The 2008 impeachment proceedings against then Karnataka Governor Rameshwar Thakur showcase how constitutional mechanisms allow for accountability. This process ensures that immunity does not equate to absolute power without responsibility.

Supreme Court Examination: 

• • The Supreme Court is reviewing whether this immunity should be interpreted more narrowly to permit criminal proceedings in cases involving fundamental rights violations.
  • Example: The current case involving West Bengal Governor C.V. Ananda Bose, accused of sexual harassment, is a significant test of this immunity. The Supreme Court’s decision could redefine the extent of protection under Article 361, balancing the need for immunity with the principles of justice and accountability.

Arguments Against Blanket Criminal Immunity for the Governor and President

Attack on Citizen’s Fundamental Rights

• • Argument: Critics argue that Article 361(2) should not shield illegal acts that infringe upon a citizen’s fundamental rights, particularly the right to life under Article 21 of the Constitution.
  • Example: Allegations against West Bengal Governor C.V. Ananda Bose for sexual harassment have raised concerns that immunity delays justice and undermines the victim’s fundamental rights by shielding the Governor from immediate legal action.

Impediment to Justice

• • Argument: Immunity delays investigations and legal proceedings against sitting Governors, potentially compromising evidence and the integrity of the trial process, denying timely justice to victims.
  • Example: Allegations against former Andhra Pradesh Governor E.S.L. Narasimhan, involving delays in investigation due to immunity, highlight how crucial evidence can be lost or tampered with over time, affecting the fairness of the trial.

Against Modern Democratic Principles and Constitutional Morality

• • Argument: The immunity clause is seen as outdated, rooted in the notion that “the king can do no wrong,” which is incompatible with modern democratic principles demanding accountability and transparency.
  • Example: In modern democracies, public officials are expected to be accountable for their actions. In India, the lack of accountability can erode public trust in democratic institutions. For instance, controversies surrounding former Governor of Arunachal Pradesh, Jyoti Prasad Rajkhowa, who faced allegations of mismanagement, highlighted concerns about the lack of accountability due to immunity.

Immunity Should Not Extend to Illegal Acts

• • Argument: Immunity should not cover illegal acts unrelated to the official duties of the Governor. Crimes like sexual harassment are personal actions and should not be protected by Article 361.
  • Example: The ongoing case involving allegations of sexual harassment against West Bengal Governor C.V. Ananda Bose underscores the need for accountability for personal misconduct, which is unrelated to official responsibilities.

Impairment of Police Powers of Investigation

• • Argument: Immunity impairs the police’s ability to investigate crimes or even name the perpetrator in complaints or FIRs, particularly in cases of heinous crimes committed in a personal capacity.
  • Example: In cases where Governors have been accused of serious offenses, such as the allegations of misconduct against former Madhya Pradesh Governor Ram Naresh Yadav, the inability to investigate or name the suspect due to immunity hampers the justice process and protects perpetrators from legal accountability.

Judicial Judgments on Immunity Powers of the Governor and President

Rameshwar Prasad vs. Union of India (2006)

• • Summary: 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 Yadav vs. State of Madhya Pradesh (2015)

• • Summary: The High Court ruled that Governor Ram Naresh Yadav had ‘absolute protection’ under Article 361(2) from malicious publicity while in office. However, this immunity does not impede the police’s powers to investigate offenses.
  • Example: In the context of the Vyapam scam, the court affirmed that while the Governor could not be prosecuted while in office, the police could still investigate the allegations, ensuring that immunity does not obstruct the investigative process.

State vs. Kalyan Singh (2017)

• • Summary: In the 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.
  • Example: Kalyan Singh, while serving as Governor, could not be prosecuted for his role in the Babri Masjid demolition until his term ended, highlighting the temporary nature of immunity under Article 361.

Telangana High Court Judgment (2024)

• • Summary: The High Court 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.
  • Example: The Telangana High Court’s observation that judicial review is applicable to the Governor’s actions ensures that while personal immunity exists, it does not completely shield the Governor’s decisions from being examined by the judiciary for legality and constitutionality.

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Way Forward

Appointment of Eminent Persons

• • Recommendation: Various commissions, including the Sarkaria Commission (1988), NCRCW (2002), and Puncchi Commission (2010), have recommended the appointment of individuals with distinguished public service records as Governors. This would help prevent the misuse of immunity.
  • By appointing respected figures such as former civil servants, judges, or academics, the chances of misuse of the position and its accompanying immunities can be minimized, ensuring a higher standard of governance.

Judicial Scrutiny and Interpretation

• • Recommendation: The Supreme Court’s willingness to re-evaluate Article 361 reflects an understanding that the existing immunity provisions may need adjustment. The court is considering whether immunity should be absolute or allow for judicial scrutiny in cases involving fundamental rights.
  • Recent cases, like the one involving West Bengal Governor C.V. Ananda Bose, highlight the need for a more balanced approach. Judicial scrutiny could ensure that while the dignity of the office is preserved, individual rights are also protected.

Balancing Immunity and Accountability

• • Recommendation: The ongoing legal debates underscore the need to balance constitutional protections for high officeholders with accountability for alleged misconduct. The Supreme Court’s examination could set important precedents for interpreting constitutional immunity and protecting individual rights.
  • The Telangana High Court’s 2024 judgment, which emphasized that judicial review is not barred by Article 361, illustrates the potential for a more nuanced approach that does not compromise on justice.