• UGI USER
  • Jul 25, 2024
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IS IMMUNITY FOR THE PRESIDENT AND GOVERNORS ABSOLUTE?

Syllabus:

GS 2:

  • Functions and Responsibilities of the Union and the States, Issues and Challenges Pertaining to the Federal Structure.

Why in the News?

The Supreme Court is examining if the immunity granted to the President and Governors under Article 361 extends to criminal proceedings. This inquiry, prompted by allegations against West Bengal Governor C.V. Ananda Bose, raises important questions about accountability and the scope of constitutional protections.

Source: UGI

Introduction

  • Immunity Debate: The Supreme Court is questioning if the absolute immunity granted to the President and Governors under Article 361 undermines fairness, constitutional morality, and fundamental rights to equal protection and a fair trial.
  • Judicial Scrutiny: A three-judge Bench led by Chief Justice of India D.Y. Chandrachud has involved the Union government and sought the Attorney General’s assistance to address the implications of this immunity.
  • Case Context: This scrutiny arises from a petition filed by a contractual employee accusing West Bengal Governor C.V. Ananda Bose of sexual harassment, challenging the extent of the Governor’s immunity.
  • Victorian Belief: The petitioner argues that the immunity is rooted in the outdated belief that “the King can do no wrong,” and asserts that it denies justice by preventing timely investigation.
  • Impact on Justice: The petitioner fears that waiting for the Governor to leave office before initiating an investigation could undermine the chances of a fair trial and justice.

What is the Case?

  • Petition Details: A woman employed at Raj Bhavan has accused Governor Bose of sexual harassment and seeks to challenge the “absolute immunity” preventing investigation during his term.
  • Police Inaction: She alleges that her complaint has been treated dismissively due to the Governor’s immunity, compelling her to seek judicial intervention for justice.
  • Delay Concerns: The petitioner worries that delaying the investigation until the Governor’s term ends could jeopardize her case, potentially denying her justice.
  • Supreme Court’s Role: The court is asked to mandate an investigation by the West Bengal police and to define the extent of the Governor’s immunity.
  • Guidelines Request: The petitioner urges the court to frame guidelines clarifying the limits of immunity to ensure that it does not impede justice in cases of serious allegations.

Do Governors Have Immunity?

  • Article 361(1): Provides that the President and Governors are not answerable to any court for acts done in exercise and performance of their duties, but their conduct can be reviewed for impeachment.
  • First Proviso: Allows the President’s conduct to be reviewed by Parliament or designated bodies for impeachment purposes.
  • Second Proviso: States that immunity cannot prevent a person from suing the Centre or State concerned.
  • Clause (2) Focus: The current case questions Clause (2) of Article 361, which mandates that no criminal proceedings can be instituted or continued against the President or Governors during their term.
  • Supreme Court’s Task: The court aims to interpret Clause (2) to determine the conditions under which criminal proceedings can be initiated against a sitting President or Governor.

Historical Context of Immunity Provisions

  • Constituent Assembly Debates: During the drafting of the Constitution, members debated the language and implications of Article 361, particularly concerning the immunity of Presidents and Governors.
  • Ambiguities Highlighted: Some members raised concerns about the phrase “during the term of his office,” questioning if it would allow immunity for criminal acts committed while in office.
  • Unresolved Issues: The discussion left open the question of whether a President or Governor could exploit their position to evade accountability for serious offenses.
  • Evolution of Interpretation: Over the years, judicial interpretations have sought to balance the need for immunity with the principles of accountability and justice.
  • Comparative Perspectives: The immunity provisions in India have been compared to similar protections in other democratic nations, highlighting differences and commonalities in handling constitutional authorities.

What are the Arguments Raised?

  • Petitioner’s Argument: The petitioner argues that Article 361(2) does not extend to illegal acts that violate fundamental rights, such as the right to life under Article 21.
  • Police Powers: Immunity should not impair the police’s ability to investigate crimes or name the perpetrator in complaints or FIRs.
  • Governor’s Conduct: The petitioner asserts that the Governor’s alleged actions do not fall within the scope of his official duties and therefore should not be immune from investigation.
  • Previous Interpretations: Citing Rameshwar Prasad vs. Union of India, the petitioner argues that civil immunity under Article 361(4) does not prevent challenging actions based on malafides, suggesting a similar approach for criminal immunity.
  • High Court Precedent: Refers to a Madhya Pradesh High Court ruling that held immunity does not prevent police from investigating offences, including recording the Governor’s statement

Broader Implications of the Supreme Court’s Decision

  • Impact on Governance: The Supreme Court’s interpretation of Article 361 could have significant ramifications for the functioning of constitutional authorities and their accountability.
  • Precedent for Future Cases: A clear ruling could set a precedent for handling similar cases involving allegations against high-ranking officials, ensuring that immunity does not become a shield for misconduct.
  • Public Trust: Ensuring that no one is above the law could enhance public trust in the judicial system and the principles of justice and equality.
  • Legal Framework: The decision could lead to reforms in the legal framework governing the conduct and accountability of Presidents and Governors.
  • Balancing Act: The court’s challenge is to balance the need for protecting the dignity of high offices with the imperative of upholding fundamental rights and ensuring justice for all citizens.

Way Forward

  1. Review Constitutional Provisions: Reevaluate Article 361 to clarify the extent and limitations of immunity for Presidents and Governors, ensuring it does not obstruct justice.
  2. Judicial Guidelines: Develop comprehensive guidelines for interpreting and applying Article 361, specifying circumstances under which criminal proceedings can be initiated against constitutional authorities.
  3. Balanced Immunity: Establish a balanced approach that maintains the dignity of high offices while ensuring accountability for any alleged misconduct or criminal activities.
  4. Fast-Track Mechanisms: Create special fast-track judicial mechanisms to address complaints against Presidents and Governors, preventing undue delays in justice.
  5. Public Accountability: Enhance transparency and accountability mechanisms within Raj Bhavans and Rashtrapati Bhavan to prevent abuse of power and ensure public trust.
  6. Legislative Oversight: Strengthen legislative oversight of constitutional authorities, allowing for regular reviews and checks on their conduct and performance.
  7. Awareness and Training: Conduct regular awareness and training programs for law enforcement and judicial officers on handling cases involving high-ranking constitutional authorities to ensure fair and impartial investigations.

Conclusion

The Supreme Court’s decision on Article 361 could reshape the legal landscape regarding the immunity of constitutional authorities. Balancing high office dignity with accountability, the ruling has the potential to ensure that justice prevails, even for those in the highest positions of power.

Source:The Hindu

Mains Practice Question:

Discuss the implications of Article 361 on the accountability of constitutional authorities in India. Should the immunity granted to the President and Governors be absolute? Provide arguments for and against with relevant examples.

Associated Article:

https://universalinstitutions.com/states-vs-governors-the-need-for-clarity/