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Context:

• The Supreme Court agreed to hear a plea seeking to redefine the contours of the constitutional immunity enjoyed by the Governor of a state

Immunities under Article 361

Non-Answerable to Courts: Article 361(1):

• 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.

Protection from Criminal Proceedings:

• Under Article 361(2), no criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any court during his term of office.

No Arrest:

• Under Article 361(3), no arrest or imprisonment processes can be issued against the President or Governor during their term of office.

Protection from Civil Proceedings:

• Under Article 361(4), no civil lawsuits can be filed against the President or Governor of a State during their term of office for any personal acts until two months after giving written notice.
• Thus the article protects the President and Governor from criminal prosecution, and bars any judicial scrutiny of their actions.
• Article 361 is an exemption of right to equality under article 14.

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.

Articles related to the Governor in India ●Article 153: States that each state will have a Governor ●Article 154: Vests the state's executive power in the Governor, who can exercise it directly or through subordinates ●Article 155: States that the President appoints the Governor by warrant under their hand and seal ●Article 156: Covers the Governor's term of office ●Article 157: States that to be eligible for appointment, a person must be an Indian citizen who is at least 35 years old ●Article 158: Covers conditions of the Governor's office ●Article 159: Covers the Governor's oath or affirmation ●Article 161: Empowers the Governor to grant pardons, reprieves, respites, or remissions of punishment ●Article 213: Covers the Governor's power to promulgate ordinances during a legislative recess

Case under SC

• The interpretation of the phrases — in Article 361(2) and 361(3) — “criminal proceedings” and “process for the arrest or imprisonment” 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

West Bengal’s argument :

• West Bengal 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 case the President, or the Governor, commits a crime, “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”.
• 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.
• The article was adopted without any much debate on criminal immunity in the Constituent Assembly.

Discretionary power of Governor Constitutional Discretion ●He can give or withhold assent to Bills, return a Bill for reconsideration of the House concerned or both the Houses, reserving it for the consideration of the President (Article 201).   ●Article 356: He advises the President on the issue of the failure of the constitutional machinery and recommends for the imposition of the President’s rulein the state concerned.   ●Article 239 (2): Where the Governor is also appointed as administrator of some Union Territory in respect of administration of such territories he will act independently of his Cabinet. ●Article 167: He seeks information from the Chief Minister with regard to the administrative and legislative matters of the state. Situational Discretion of Governor ●The Governor can appoint a new Chief Minister in a situation where no single party or leader commands majority support.  ●He can dissolve the Assembly on the advice of a Chief Minister who has lost majority support. ●He can dismiss a Ministry where the Ministry refuses to resign even after losing majority support in the House or after being defeated on a non-confidence motion.

Judicial interpretation

State vs Kalyan Singh & Ors, 2017

• The case was 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.

Vyapam scam verdict by Madhya Pradesh HC, 205

• The HC had to determine if the registration of an FIR against the governor would amount to criminal proceedings being “instituted” in the case.
• The HC allowed investigation in that FIR against other accused but withheld the name of the Governor till he occupied the office.
• The Madhya Pradesh High Court 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.”

Rameshwar Prasad vs Union of India, 2006

• 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 held that 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)”.

Recommendation of various committees on Governor's powers and roles Sarkaria Commission (1988): ●Governors should be appointed by the President after consulting the Chief Minister of the respective state. ●Governors should be eminent individuals from outside the state they are appointed to. ●Governors should not be removed before completing their term except in rare and compelling circumstances. ●Governors should act as a bridge between the Centre and the state, not merely as agents of the Centre. ●Discretionary powers should be used sparingly and judiciously to avoid undermining democracy. Punchhi Commission (2010): ●The phrase "during the pleasure of the President" should be removed from the Constitution,  to mean that Governors cannot be removed at the central government's will. ●Governors should only be removed by a resolution of the state legislature, for upholding the state autonomy and stability. Venkatachaliah Commission (2002): ●A committee comprising the Prime Minister, Home Minister, Lok Sabha Speaker, and Chief Minister of the state should appoint Governors. ●Governors should complete their five-year term unless they resign or are removed for proved misbehaviour or incapacity. ●The central government must consult the Chief Minister before taking any action to remove a Governor. ●Governors should refrain from interfering in the day-to-day administration of the state and should act as mentors and use discretionary powers carefully.

Conclusion

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

Must read articles:

Conflict between states and governors

Governor

Sources

https://indianexpress.com/article/explained/explained-law/what-is-governors-immunity-under-article-361-set-to-be-reviewed-by-supreme-court-9467667/

https://www.business-standard.com/india-news/sc-to-examine-governor-immunity-over-molestation-row-what-is-article-361-124071900715_1.html

PRACTICE QUESTION Q. The role of the governor as a constitutional de-Jure head of the state has met with significant controversy in recent years. In this context analyse the immunity granted to the governors under article 361 of the Indian constitution. (250 Words)