Rethink the immunity granted to governors
This widely worded provision of immunity can be attributed to our colonial past which functioned with the concept of the “king can do no wrong”.
Serious allegations of sexual harassment and molestation have been levelled against the governor of West Bengal. Such allegations are substantive for the criminal justice process to start against an accused under India’s criminal jurisprudence. But, when an accused enjoys constitutional or statutory powers, as in the present case, it is very rare that an individual or woman would come in public to lodge a complaint. Here, the accused holds a constitutional position and enjoys immunity as set out in Article 361 of the Constitution, especially in Clause 2 which states that “no criminal proceedings of whatsoever shall be initiated or continued against the governor”.
This widely worded provision of immunity can be attributed to our colonial past which functioned with the concept of the “king can do no wrong”. This concept was reflected in independent India’s Constitution. Even in England, the Crown Proceedings Act — passed in 1947 — made it possible to sue the Crown for civil wrongs, while retaining several privileges and immunities. Under India’s constitutional mechanism, the governor’s immunity is very wide. One consequence of this is that the bar under Article 361(2) is set even when there are allegations of crime against women and corruption. In 2015, there were allegations of corruption against the then-governor of Madhya Pradesh, Ram Naresh Yadav, but legal processes could not be initiated because of his position. Similarly, in 2017, then Meghalaya governor V Shanmuganathan faced allegations of serious moral turpitude involving several women survivors.
It is not that Constitution makers while articulating the provision under Article 361 (2), were unaware of the possible misuse of this provision. The Constituent Assembly debates reflect that; on September 8, 1949, HV Kamath questioned if the governor or the ruler shall have “no liability for the criminal act committed by him during his term of office.” He asked, “Suppose for instance he commits a crime, God forbid that the President or the governor or the ruler of a State should be guilty of criminal conduct but human nature is fallible and so if he unfortunately commits a criminal act, does this clause mean that no proceeding can be instituted against him during the whole prescribed term?” On this issue, he kept probing for a strong logical reason for such wide immunity, but the provision was nevertheless adopted.
In the case of Rameshwar Prasad (2005), while interpreting the immunity of the governor under Article 361(1) with regard to action in the discharge of official duties, the Supreme Court (SC) held that the mala fide actions of the governors shall be amenable to court proceedings. The SC clarified that due to the immunity, a governor cannot be sued, but that does not mean that the ground of mala fides or a proclamation without any basis in law would not be examined in court. It further said such allegations against a governor were required to be defended by the State, given the bar in Article 361(1) meant the governor can not be present in Court. As per this judgment, in cases of personal mala fide, the immunity of the governor stands diluted even in discharge. Ironically, when it comes to allegations of criminal acts, the criminal justice process cannot be set in motion against the governor.
Immunity for the governor (or the President) is based on the fact that all their actions are on the aid and advice of a Council of Ministers. Hence, direct accountability for an illegal action lies only with the concerned minister(s). Thus, Article 361(1) grants immunity from acts done by governors in the exercise and performance of their powers and duties.
There is a sitting chief minister in judicial custody, facing allegations of corruption. The Prevention of Corruption Act makes government officials liable for prosecution for allegations of corruption. At the same time, they also enjoy immunity for the discharge of their duties in the exercise of official function. If the governor indulges in corruption, sexual harassment, or any other offence under the Indian Penal Code, whether within or outside the discharge of his official functions, his liability needs to be determined through an appropriate legal process irrespective of whether he is holding office or has demitted the same.
We have seen many governors resign after allegations against them were reported in the public domain, but there are also many who didn’t. This depends on the political scenario at the time and the will of the central executive. Both these factors function arbitrarily and without accountability. There have been some changes, though, in England, ushered in by legislation. We have also seen President Bill Clinton facing trial as per the mechanism of the United States Constitution, in the Monica Lewinsky matter. But India continues to stick with the “king can do no wrong” principle. After 75 years of the Constitution, it is high time that we take Kamath’s warning seriously. Either through an appropriate amendment in the Constitution or through the intervention of the SC in the matter already pending before it, the scope of immunity granted under Article 361(2) calls for immediate reconsideration.
MR Shamshad is senior advocate, the Supreme Court of India. The views expressed are personal
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