Article 361-President & Governor Immunity

A three-judge Bench led by Chief Justice of India D.Y. Chandrachud is hearing a case challenging the blanket criminal immunity granted to the President and Governors under Article 361 of the Constitution. The court has involved the Union government and sought the Attorney General's assistance to determine whether this immunity undermines fairness, constitutional morality, and violates the fundamental rights to equal protection and a fair trial. The issue arose from a petition by a woman accusing West Bengal Governor C.V. Ananda Bose of sexual harassment.

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ARTICLE 361 OF INDIAN CONSTITUTION-PRESIDENT AND GOVERNOR IMMUNITY

• Article 361(1): The President or Governor is not answerable to any court for performing their official duties. However, their conduct can be reviewed by a court, tribunal, or body appointed by Parliament for investigating charges under Article 61 (violation of the Constitution). This immunity does not prevent someone from suing the Centre or State.

• Article 361(2): No criminal proceedings can be initiated or continued against the President or a State Governor in any court during their term of office.

• Article 361(3): No court can issue an arrest or imprisonment order against the President or a State Governor during their term of office.

• Article 361(4): No civil proceedings can be initiated against the President or a State Governor for acts done in a personal capacity during their term without a two-month notice.

ARGUMENTS FAVORING IMMUNITY UNDER ARTICLE 361 OF CONSTITUTION OF INDIA

• To uphold the dignity and independence of high offices: The immunity protects the President and Governors from frivolous and malicious prosecutions, ensuring they can perform their constitutional duties without fear or bias.

• To prevent misuse of legal process: The immunity protects the President and Governors from harassment through vexatious litigation, ensuring they remain focused on their official duties without constant court defenses.

• To preserve the principle of separation of powers: The immunity acknowledges the President and Governors as heads of the executive branch, aiming to balance power among the executive, legislative, and judicial branches.

• To ensure uninterrupted governance: The immunity ensures stability and continuity by protecting the President and Governors from criminal prosecution during their term, though it can be lifted for impeachment or civil suits for personal actions. The Supreme Court is considering whether to narrow this immunity to allow criminal proceedings for fundamental rights violations.

ARGUMENTS AGAINST THE GRANT OF BLANKET CRIMINAL IMMUNITY TO THE GOVERNOR AND THE PRESIDENT

VARIOUS JUDGEMENTS ON THE IMMUNITY POWERS OF THE GOVERNOR AND PRESIDENT

• Rameshwar Prasad vs. Union of India (2006): This landmark judgment clarified that while Governors have complete immunity under Article 361, their actions can still be subject to judicial scrutiny, especially if alleged to be taken in bad faith.

• Ram Naresh vs. State of Madhya Pradesh (2015): The HC ruled that Governor Ram Naresh Yadav had "absolute protection" under Article 361(2) from malicious publicity while in office, but this immunity does not hinder police investigations.

• State vs. Kalyan Singh (2017): In the Babri Masjid demolition case, the Supreme Court ruled that then-Rajasthan Governor Kalyan Singh was immune under Article 361 while in office, with criminal proceedings possible only after his term ended.

• Telangana High Court Judgment (2024): The HC observed that the Constitution does not bar judicial review of a Governor's actions, and stated that Article 361 immunity is personal, not a shield against judicial review.

WAY FORWARD CONSTITUTION OF INDIA

Appointment of Eminent Persons: The Sarkaria (1988), NCRCW (2002), and Puncchi (2010) Commissions recommend appointing Governors with eminent public life backgrounds to prevent misuse of immunity.

Judicial Scrutiny: The Supreme Court's review of Article 361 suggests a re-evaluation of whether immunity should be absolute or subject to judicial scrutiny, especially when fundamental rights are at stake, indicating a move towards a more balanced approach.