What is Governor’s immunity under Article 361, set to be reviewed by Supreme Court?

A three-judge Bench — comprising Chief Justice of India DY Chandrachud, and Justices J B Pardiwala and Manoj Misra — took up the issue after a petition was moved by a contractual woman employee of West Bengal Raj Bhavan. She has alleged sexual harassment by Governor C V Ananda Bose.

What is the immunity provided to Governors, and why is it under scrutiny?

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.

The interpretation of these phrases — in Article 361(2) and 361(3) — “criminal proceedings” and “process for the arrest or imprisonment” is what is now before the SC. The court will consider whether that process covers a registration of FIR, initiation of a preliminary inquiry, or a magistrate taking cognisance of an offence, which is the technical start of a criminal case.

In the West Bengal case, the petitioner has argued that if none of the aforementioned actions can be taken against Governor Bose till he demits office, it could lead to a violation of rights, and impact the evidence in this case.

In its order, the SC said “the interpretation of clause (2) [of Article 361] arises for determination, more particularly, when criminal proceedings would be construed to have been ‘instituted’.”

Origins of Governor’s immunity

The protection given to the President and the Governor can be traced to the Latin maxim rex non potest peccare or “the king can do no wrong”, which is rooted in English legal traditions.

The Constituent Assembly discussed the introduction of Article 361 — or Draft Article 302 as it was known then — on September 8, 1949. On criminal immunity, Assembly Member H V Kamath from the Indian National Congress raised certain prescient questions. In case the President, or the Governor, commits a crime, he asked “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”. He also asked if the President should remove “a Governor or a Ruler committing a criminal act” in case a prima facie case is made against the Governor concerned.

However, the article was adopted without any further debate on criminal immunity. In the last decade, the courts have shed light on what it means for criminal proceedings to be “instituted” against the Governor, and when the protection under Article 361(2) lapses.

Judicial interpretation

The SC did so in the 2017 criminal case — State vs Kalyan Singh & Ors — concerning the Babri Masjid demolition in 1992. The court delayed the trial against then Rajasthan Governor Kalyan Singh, who was one of the accused in the case.

In its order, the SC said being the Governor, Kalyan Singh “is entitled to immunity under Article 361 of the Constitution as long as he remains Governor of Rajasthan. The Court of Sessions will frame charges and move against him as soon as he ceases to be Governor”.

In 2015, the Madhya Pradesh High Court categorically held that Article 361(2) “guarantees absolute protection from any malicious campaign or publicity against the Head of a State, so as not to undermine the solemnity of that office.”

The observation came in a case pertaining to the Vyapam scam. Then Governor of Madhya Pradesh Ram Naresh Yadav was one of the accused in the scam, and the HC had to determine if the registration of an FIR against him would amount to criminal proceedings being “instituted” in the case.

In its ruling, the HC allowed investigation in that FIR against other accused, while “effacing” the name of the Governor till he occupied the office. As Yadav died in November 2016, the SC did not rule in appeal.

Another judicial intervention on the Governor’s immunity came in the landmark 2006 ruling in Rameshwar Prasad vs Union of India. In the case, the SC had to deal with the Governor’s immunity in civil cases after recommending the Bihar Assembly’s dissolution in 2005.

The court said while the Governor enjoys “complete immunity” when exercising their powers under Article 361(1), 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)”.

The SC in that case examined the Governor’s actions in discharging his constitutional powers, which can be placed on a higher threshold compared to acts outside the discharge of constitutional or any official duties.

The case for revisiting

The debate on whether executive immunity is a blanket protection has been taking place in other countries as well.

The US Supreme Court on July 1 decided that former President Donald Trump, or any former US President, is entitled to “absolute immunity” from criminal prosecution for official acts but not unofficial or personal acts.

This came as a huge relief for Trump, who faces a criminal case for allegedly attempting to subvert the 2020 presidential election results, while he was in power.

In the Indian context too, this discussion has to be viewed in the larger context of the tussle between the office of the Governor, and governments in opposition-ruled states. Even the SC has taken note of instances where Governors have acted with political motives. The case is likely to be heard next on August 12.