CONSTITUTIONAL IMMUNITY OF THE PRESIDENT AND GOVERNORS

SYLLABUS:

GS 2 > Polity   >   Executive   >   President and Governor

REFERENCE NEWS:

• Recently, the Supreme Court has agreed to hear a plea that challenges the "blanket" immunity provided to the President and Governors under Article 361, particularly in criminal matters. This plea arose from allegations of sexual harassment made by a contractual employee of the West Bengal Raj Bhavan against Governor C.V. Ananda Bose.

MORE ON NEWS:

• The Supreme Court, under the leadership of Chief Justice D.Y. Chandrachud, has taken up the case to examine whether the "blanket" immunity provided to Governors under Article 361 undermines fairness, constitutional morality, and violates fundamental rights, including equal protection of the law and the right to a fair trial. The court has also involved the Union government in the proceedings and sought assistance from the Attorney General of India.

ARTICLE 361 (CONSTITUTIONAL IMMUNITY OF THE PRESIDENT AND GOVERNORS):

• Article 361states 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.

• The phrases “criminal proceedings” and “process for the arrest or imprisonment” from Article 361(2) and 361(3) are currently under review by the Supreme Court.
• The Court will evaluate whether these processes encompass the registration of an FIR, the initiation of a preliminary inquiry, or a magistrate taking cognizance of an offense, marking the technical beginning of a criminal case.

ARGUMENTS IN SUPPORT OF IMMUNITY FOR THE PRESIDENT AND GOVERNORS:

• Historical and International Precedents:
  • The concept of immunity for heads of state is a well-established principle in international law and is practiced in many democracies to safeguard the national interest.
  • For instance, similar to the immunity provisions in India, the United States provides its President with immunity from criminal prosecution while in office, reflecting a common international practice to ensure stable governance.
• Maintaining the Dignity and Efficient Performance of High Offices:
  • Immunity under Article 361 preserves the dignity and sanctity of high offices such as the President and Governors by shielding them from legal proceedings. This protection ensures they can perform their constitutional duties unimpeded, without the distractions or disrepute that might arise from ongoing litigation, thereby maintaining their effectiveness and focus.
• Protecting Against Frivolous Litigation:
  • This immunity protects high officials from frivolous or politically motivated charges that could be used to undermine their effectiveness or destabilize governance.
  • For instance, in politically volatile environments, opposition parties might use lawsuits as a tool to hamper or discredit a President or Governor. Immunity shields the office holders from such tactics.
• Judicial Interpretations Upholding Immunity:
  • Courts have historically upheld these immunities as essential for maintaining the constitutional balance and the smooth operation of the state machinery.
  • For example, in the case of State vs Kalyan Singh, the Supreme Court of India ruled that the Governor of Rajasthan enjoyed immunity under Article 361 during his term, which prevented his prosecution in the Babri Masjid demolition case until he left office.
• Preventing Misuse of Legal System:
  • Immunity under Article 361 prevents the misuse of the legal system to interrupt or manipulate governmental functions, which is crucial for upholding the rule of law and democratic principles.
  • For instance, by ensuring that the Governor of a state cannot be arrested or detained while in office, Article 361 prevents potential legal abuses that could lead to governance paralysis or coerced political decisions.

ARGUMENTS AGAINST:

• Obstruction of Justice:
  • Article 361 can delay justice by postponing legal proceedings until a governor's term ends, impacting evidence integrity and judicial effectiveness.
  • For example, in "State vs Kalyan Singh & Ors (2017)," the Supreme Court deferred legal proceedings against Kalyan Singh, related to the Babri Masjid demolition, until after his gubernatorial term. This case exemplifies how immunity can hinder timely justice, similarly affecting ongoing cases like Governor Bose's, where immediate legal action is crucial but delayed.
• Vagueness and Broad Application:
  • The language of Article 361(2) is often seen as too vague and broad, opening the door for potential misuse. The unclear boundaries about what actions are covered as part of official duties can lead to arbitrary interpretations.
  • For example, during the Constituent Assembly debates, H.V. Kamath questioned whether Article 361(2) would protect a President or Governor against prosecution for criminal acts unrelated to official duties. He asked if this immunity extends throughout their term or only while in office, highlighting ambiguities in its application. Despite these concerns, the article was adopted without further debate.
• Challenge to Rule of Law and Accountability:
  • Granting complete immunity under Article 361(2) is seen as a challenge to the rule of law by creating a category of individuals who are above the law during their term. This can potentially undermine the accountability mechanisms that are fundamental to democratic governance. 
• Infringement of Fundamental Rights:
  • The bar on criminal proceedings under Article 361(2) can result in violations of fundamental rights such as equality before the law and the right to life and liberty as outlined in Article 21. When officials are protected from prosecution, affected individuals lack immediate legal recourse, which can effectively deny their fundamental rights.
• Contradiction with Democratic Values:
  • The provision contradicts core democratic values of transparency and equal justice. By exempting high officials from prosecution, it creates a perception of inequality and privilege that can erode public trust in governmental institutions.
• Judicial Interpretations Questioning Immunity:
  • Previous judicial interpretations have questioned the blanket nature of this immunity. Courts have indicated that civil and criminal immunities should not protect officials from actions taken in bad faith or outside the scope of their official capacities.
  • For example, the Supreme Court’s ruling in Rameshwar Prasad vs. Union of India suggests that actions rooted in malafide intentions can still be subject to judicial scrutiny, challenging the notion of absolute ‘civil immunity’ under Article 361(4).

WAY FORWARD:

• Temporal Limitations on Immunity: Allow preliminary investigations during an official’s term but postpone arrest and prosecution until after the term concludes.
• Judicial Scrutiny and Interpretation: Encourage judicial reviews of Article 361 to assess if immunity should be absolute, ensuring it aligns with both the office's dignity and individuals' rights, reflecting the Supreme Court’s current re-evaluations.
• Eminent Appointments: Following recommendations by the Sarkaria Commission (1988), NCRCW (2002), and Punchhi Commission (2010), appoint individuals with distinguished public life as Governors to minimize the misuse of immunity.
• Democratic Accountability: Strengthen parliamentary oversight and independent reviews to enhance the transparency and accountability of Presidents and Governors.
• Public Transparency: Mandate annual public disclosures on the activities and conduct of these officials to promote transparency and facilitate informed public discourse.

PRACTICE QUESTION:

Q. What are the provisions of Article 361 of the Indian Constitution that grant immunity to the President and Governors from legal proceedings? Discuss the arguments for and against this immunity. (15 marks, 250 words)