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Mahesh

25/07/24 13:01 PM IST

Immunity for the President & Governors

In News
  • A three-judge Bench headed by the Chief Justice of India D.Y. Chandrachud has sought assistance from the Attorney General of India to decide if a “blanket” immunity granted under Article 361 to the President and Governors, while in office.
Governor's 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 powers and duties.
  • However the first proviso to Article 361(1) 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 to Article 361(1) holds that the immunity cannot stop a person from suing the Centre or State concerned.
  • The clause in question before the Supreme Court in the current case is clause (2) of Article 361 which mandates 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 apex court has decided to interpret clause (2) of Article 361 to determine when exactly could criminal proceedings be instituted against a President or Governor.
  • In short, the court has decided to rattle the protective cover of immunity to see if it is “unfettered or unbridled”.
  • The  Constituent Assembly debates on Article 361 (Draft Article 302) in September 1949 show that a Member had indeed found the language of clause (2) vague.
  • The discussion concerned the phrase “during the term of his office” in Article 361(2).
  • The Member had queried if this would mean the President or a Governor could enjoy immunity by continuing in office despite committing a criminal act. The question was left open. 
Concerns
  • The petitioner argues that a bar on criminal proceedings under Article 361(2) does not extend to illegal acts or those which “strike at the roots” of a citizen’s fundamental rights.
  • The alleged actions of Governor Bose infringed upon her right to life under Article 21 of the Constitution, she submitted.
  • The immunity under Article 361 cannot impair the police’s powers to investigate the offence or even name the perpetrator in the complaint/FIR.
  • No part of the powers of the Governor provide for him to sexually abuse employees, the employee said.
  • The Supreme Court, in Rameshwar Prasad vs. Union of India, had 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 the ground of ‘malafides’.
  • An analogy could be drawn to interpret criminal immunity the same way.
  • The petition referred to a Madhya Pradesh High Court ruling in Ram Naresh vs State of Madhya Pradesh, which had held that the immunity would not impair the police’s powers to investigate an offence, which included recording the Governor’s statement.
Source- The Hindu

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