Is Immunity for the President and Governors Absolute? (GS Paper 2, Polity)
Context
- A three-judge Bench led by Chief Justice of India D.Y. Chandrachud has involved the Union government and sought assistance from the Attorney General of India to decide if the "blanket" immunity under Article 361 granted to the President and Governors, while in office, from criminal proceedings undermines fairness, constitutional morality, and violates fundamental rights to equal protection of the law and fair trial.
What is the Case?
- The issue arose from a petition filed by a contractual woman employee with the Raj Bhavan accusing West Bengal Governor C.V. Ananda Bose of sexual harassment and molestation.
- The petitioner argued that the police handled her complaint against the Governor dismissively due to the immunity clause.
- She contended that she had no choice but to wait for the Governor to leave office for the investigation to commence.
- She urged the court to mandate the State of West Bengal to investigate her complaint and to frame guidelines defining the extent of the immunity.
Do Governors Have Immunity?
Article 361 (1):
- Provides that the President and Governors are not answerable to any court for acts done in the exercise and performance of their powers and duties.
- The first proviso allows the conduct of the President to be reviewed by any court, tribunal, or body designated by either House of Parliament for the investigation of a charge under Article 61 (impeachment for violation of the Constitution).
- The second proviso states that the immunity does not prevent a person from suing the Centre or State concerned.
Article 361 (2):
- States that "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".
The Supreme Court has decided to interpret clause (2) of Article 361 to determine when criminal proceedings can be instituted against a President or Governor, essentially questioning the extent of the protective cover of immunity.
Historical Context:
- Constituent Assembly debates in September 1949 on Article 361 (Draft Article 302) showed concerns about the language of clause (2), particularly the phrase "during the term of his office".
Not an Absolute Immunity
- The immunity under Article 361 does not impair the police's power to investigate an offence or name the perpetrator in the complaint/FIR.
- The powers of the Governor do not include the authority to commit crimes such as sexual abuse.
- The Supreme Court, in Rameshwar Prasad vs. Union of India, interpreted that 'civil immunity' under Article 361(4) did not take away the power of citizens to challenge the actions of the President or Governors on grounds of 'malafides'.
Key Points from Supreme Court Rulings:
Rameshwar Prasad vs. Union of India:
- The court interpreted that 'civil immunity' under Article 361(4) does not prevent citizens from challenging the actions of the President or Governors on grounds of malafide intentions.
- The immunity is intended to protect the functioning of these high offices, not to shield personal misconduct.
Madhya Pradesh High Court in Ram Naresh vs. State of Madhya Pradesh:
- This ruling held that the immunity under Article 361 does not prevent the police from investigating an offence, including recording the Governor’s statement.
- The immunity is procedural and does not obstruct justice or the investigation of criminal acts.
Arguments Against Absolute Immunity:
Fairness and Constitutional Morality:
- The principle of fairness and constitutional morality demands that no individual, irrespective of their position, should be above the law.
- Absolute immunity could lead to misuse of power and injustice, undermining public confidence in the legal system.
Fundamental Rights:
- The fundamental right to equal protection of the law and a fair trial, guaranteed by Articles 14 and 21 of the Constitution, could be violated by absolute immunity.
- Victims of crimes, including gender violence, must have the right to seek redress and justice without undue delay.
Precedents and Comparative Law:
- In other democratic countries, immunity for heads of state or governors is not absolute and often allows for exceptions, particularly in cases involving serious crimes.
- Comparative analysis of international practices can inform a balanced approach to immunity in India.
Conclusion
- This case represents a significant moment in interpreting constitutional provisions concerning the balance between immunity for high constitutional offices and the fundamental rights of individuals to seek justice and protection under the law.
- The Supreme Court’s decision will have far-reaching implications for the accountability of public officials and the enforcement of the rule of law in India.
- The court may establish guidelines to ensure that while the dignity and functionality of high offices are preserved, they do not become a shield for personal misconduct or criminal activities.
