Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 361 and its various sub-sections
Why in the News?
- The Supreme Court has agreed to hear a plea seeking to redefine the constitutional immunity of state Governors.
- Article 361 of the Constitution shields the President and Governors from criminal prosecution and judicial scrutiny.
- The Supreme Court will interpret whether the immunity includes the registration of an FIR, initiation of a preliminary inquiry, or a magistrate taking cognisance of an offence.
Origins of Governor’s Immunity
- The concept of immunity is based on the Latin maxim “rex non potest peccare” (the king can do no wrong), rooted in English legal traditions.
- During the Constituent Assembly debates in 1949, member H. V. Kamath questioned whether immunity meant no proceedings could be instituted against the President or Governor during their term or only while they were in office.
- The article was adopted without further debate on criminal immunity.
What are immunities under Article 361?
- According to Article 361(1), the President or a Governor is not answerable to any court for the exercise of their powers and duties.
- Article 361(2) ensures that NO criminal proceedings can be initiated or continued against the President or Governor during their term.
- Article 361(3) prohibits the arrest or imprisonment of the President or Governor while they are in office.
- Article 361(4) states that civil lawsuits for personal acts against the President or Governor cannot be initiated during their term and can only proceed two months after a written notice is given post-term.
Judicial Interpretations of Article 361:
- Dr SC Barat and Anr vs. Hari Vinayak Pataskar Case (1961): Distinguished between the Governor’s official and personal actions. While official actions have complete immunity, civil proceedings for personal acts can proceed with prior notice.
- Rameshwar Prasad vs. Union of India Case (2006): The Supreme Court recognized “complete immunity” for constitutional actions under Article 361(1), but allowed judicial review for actions taken with malicious intent.
- Vyapam Scam Case (2015): The Madhya Pradesh High Court ruled that Governor Ram Naresh Yadav had absolute protection under Article 361(2), preventing his name from being included in the investigation to avoid undue legal harassment.
- State of UP vs. Kalyan Singh Case (2017): The Supreme Court upheld that Kalyan Singh, while serving as Governor of Rajasthan, was immune under Article 361. Legal proceedings related to the Babri Masjid demolition were to resume after his term.
- Telangana High Court Judgment (2024): Observed that the Constitution does not explicitly or implicitly bar judicial review of actions taken by a Governor, and stated that Article 361 immunity is personal and does not exclude judicial review.
Case for Revisiting Immunity
The debate on executive immunity is ongoing in other countries as well.
- The US Supreme Court recently decided that former President Donald Trump is entitled to “absolute immunity” from criminal prosecution for official acts but not for unofficial or personal acts.
- In India, the discussion is viewed within the larger context of the tension between Governors and opposition-ruled state governments.
- The Supreme Court has noted instances where Governors acted with political motives.
PYQ:[2018] Consider the following statements:
Which of the statements given above is/are correct? (a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2 [2019] Which one of the following suggested that the Governor should be an eminent person from outside the State and should be a detached figure without intense political links or should not have taken part in politics in the recent past? (a) First Administrative Reforms Commission (1966) (b) Rajamannar Committee (1969) (c) Sarkaria Commission (1983) (d) National Commission to Review the Working of the Constitution (2000) |
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