Why in the News? 

Even as a complaint alleging sexual harassment has been filed in Kolkata against West Bengal Governor C V Ananda Bose, Constitutional immunity bars the police from naming the Governor as an accused or even investigating the case.

What is Article 361? 

Article 361 of the Constitution that deals with immunity to the President and the Governors states that they “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”.

The provision also has two crucial sub-clauses: 

(1) that no criminal proceedings whatsoever shall be initiated or continued against the President, or the Governor of a State, in any court during the term of his office.

(2) No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office.

Immunity power of the Governor:

• Ceases to be in office: The police can act only after the Governor ceases to be in office, which is when either the Governor resigns or no longer enjoys the confidence of the President.” 

• Rameshwar Prasad v Union of India: In the landmark 2006 ruling in Rameshwar Prasad v Union of India, that outlined the immunity enjoyed by the Governor “even on allegation of personal malafides,” the Supreme Court held that “the position in law, is that the Governor enjoys complete immunity.”
• In 2017, criminal conspiracy in the 1992 demolition of the Babri Masjid case: The trial did not take place for former UP Chief Minister Kalyan Singh since he was then the Governor of Rajasthan.

Constitutional Provisions:

• Appointment: The Governor is appointed by the President of India and holds office during the pleasure of the President (Article 155).
• Qualifications: The Governor must be a citizen of India, must be at least 35 years old, and must not hold any office of profit (Article 157).
• Powers and Functions: The Governor is the constitutional head of a state and performs various functions including:
  • Executive Functions: The Governor appoints the Chief Minister and other Council of Ministers, and allocates portfolios among them (Article 164).
  • Legislative Functions: The Governor summons and prorogues the state legislature, addresses it, and lays down its policy. He/she also has the power to dissolve the Legislative Assembly (Article 174).
  • Financial Functions: The Governor causes to be laid before the State Legislature the Annual Financial Statement (budget) and has powers related to money bills (Article 202).
• Discretionary Powers: The Governor has discretionary powers in certain matters, such as appointing the Chief Minister when no party has a clear majority after elections (Article 164).
• Relation with the Union: The Governor is appointed by the President and acts as a link between the state and the Union. He/she can send reports to the President regarding the administration of the state (Article 356).
• Oath or Affirmation: Before entering office, the Governor must take an oath or affirmation according to the form set out in the Third Schedule of the Constitution (Article 159).

Conclusion: 

Article 361 of the Indian Constitution provides immunity to the President and Governors from court proceedings and arrest during their term. Police action against a Governor can only occur after they cease office.

Mains PYQ 

Q Discuss the essential conditions for exercise of the legislative powers by the Governor. Discuss the legality of re-promulgation of ordinances by the Governor without placing them before the Legislature.

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