Structure, Organization and Functioning of the Executive and the Judiciary—Ministries and Departments of the Government; Comparison of the Indian Constitutional Scheme with that of Other Countries
There has been a lot of debate in recent years regarding the governor’s constitutional status as the head of state. Examine the immunity that the Indian constitution grants to the governors in this scenario.
Article 361 of the Constitution shields the President and Governor from criminal prosecution, and bars any judicial scrutiny of their actions. The Latin proverb “the king can do no wrong,” or “rex non potest peccare,” which has its origins in English legal customs, is the source of the protection afforded to the President and the Governor.
Constitutional immunity
- Article 361 states that the President, or the Governor of a state, “shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties”, unless it is by Parliament for impeachment from office.
- The provision further says “no criminal proceedings whatsoever shall be instituted or continued”; “no process for the arrest or imprisonment” can take place while the President, or the Governor, holds office.
- Article 361(3) states that neither the Governor nor the President may be arrested or imprisoned while they are in office.
- According to Article 361(4), civil actions cannot be brought for any personal acts against the Governor or President of a State while they are in office until two months after written notice is given.
- Thus, the clause prevents any judicial review of the President’s and Governor’s conduct and shields them from criminal prosecution.
- The right to equality under Article 14 is exempted under Article 361.
For the scrutiny of Supreme Court:
- The SC is now debating how to interpret the terms “criminal proceedings” and “process for the arrest or imprisonment” found in Article 361(2) and 361(3).
- The court will take into account whether that procedure includes filing a First Information Report (FIR), starting a preliminary investigation, or having a magistrate take notice of an offense, which is the formal beginning of a criminal prosecution.
Objection regarding immunity:
- State like for instance, West Bengal has contended that there may be a violation of rights and an impact on the evidence in this case if any of the previously listed actions against Governor Bose are not pursued until after he resigns from office.
- “Does this clause mean that no proceedings can be instituted against him (the President or the Governor) during the whole prescribed term, or whether it means while he is in office only?” is a question that needs to be answered if one of them commits a crime.
- If there is a preliminary investigation into the Governor in question, the President may be required to dismiss “a Governor or a Ruler committing a criminal act.”
- The item was approved by the Constituent Assembly with little discussion of criminal immunity.
Judicial Interpretation so far:
- State vs Kalyan Singh & Ors, 2017: The Supreme Court stated in its ruling that Kalyan Singh, as the Governor, “is entitled to immunity under Article 361 of the Constitution as long as he remains Governor of Rajasthan.”
- Vyapam scam verdict by Madhya Pradesh HC: The High Court held that “Absolute protection from any malicious campaign or publicity against the Head of a State, so as not to undermine the solemnity of that office,” is what Article 361(2) promises.
- Rameshwar Prasad vs Union of India, 2006: The Governor is granted “complete immunity” while using their authority under Article 361(1), the court ruled, but this immunity “does not, however, take away the power of the Court to examine the validity of the action including on the ground of malafides (actions taken in bad faith)”.
Other nations have also been debating whether or not executive immunity is a universal safeguard. For example, recently, the US Supreme Court ruled that any former US President is entitled to “absolute immunity” from prosecution for conduct that is official but not unofficial or personal. This debate needs to be seen in the broader perspective of the struggle between the governor’s office and the governments of states ruled by the opposition in India as well.