Immunity provided to the governor

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06 May Immunity provided to the governor

Posted at 06 May 2024 in Current Affairs by
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This article covers ‘Daily Current Affairs’ and the topic details of ”Immunity provided to the governor”. This topic is relevant in the “Polity and Governance” section of the UPSC CSE exam.

 

Why in the News?
A staff member working at the Raj Bhavan in Kolkata has claimed that she experienced sexual harassment by West Bengal Governor C.V. Ananda Bose. She filed a formal complaint at the Hare Street police station in Kolkata.

 

About Article 361 of the constitution

Article 361 of the Constitution addresses the immunity granted to the President and Governors. 

  • Article 361(1): The President, or the Governor or Rajpramukh of a State, 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 :

Provided that the conduct of the President may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under Article 61 :

Provided further, nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State.

  • Article 361(2): 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.
  • Article 361(3): No process for the arrest or imprisonment of the President or the Governor of a State shall be issued from any court during his term of office.
  • Article 361(4): No civil proceedings in which relief is claimed against the President or the Governor of a State shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President, or as Governor of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor, as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefore, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims.

Summary of the Article-361

  • The President or Governor cannot be held accountable in any court for executing their official powers and duties. This means they cannot be summoned or interrogated in court for actions carried out in their official role.
  • Throughout their term, neither the President nor the Governor can be subjected to criminal proceedings. They are shielded from facing criminal charges related to their official responsibilities.
  • During their tenure, neither the President nor the Governor can be arrested or detained. This ensures they can fulfil their duties without the threat of legal repercussions.
  • If there are civil actions seeking redress against the President or Governor for actions conducted in their personal capacity (before or after assuming office), a written notice must be served two months in advance. This provision aims to allow for resolution through dialogue before resorting to legal measures.

 

What purpose does Article 361 serve?

  • By granting immunity from lawsuits, arrests, and criminal proceedings for actions taken while in office, Article 361 allows the President and Governors to perform their duties decisively without worrying about constant legal challenges. This fosters stability and efficient governance.
  • While the President and Governors receive immunity, it’s not absolute. Civil lawsuits for non-official actions are possible with notice, and impeachment processes exist for serious misconduct. This creates a balance between protecting effective governance and ensuring accountability.
  • Article 361 aims to ensure that they can discharge their duties without fear of undue interference or harassment. Additionally, the provision for prior notice in civil proceedings allows for the resolution of personal matters through communication before resorting to legal action, thus upholding the dignity and respect of these offices.

 

Related judgements and Case laws 

  • In the case of Rameshwar Prasad v Union of India, the Supreme Court affirmed the immunity bestowed upon Governors by Article 361 of the Constitution. It stressed that Governors cannot be held accountable in any court for the exercise of their powers and duties. This immunity is of a personal nature and does not absolve Governors from judicial scrutiny if their actions are found to be beyond their authority or malicious.
  • In Rajendra Singh Rana v. Swami Prasad Maurya (2007), the Supreme Court declared that Governors cannot face prosecution while in office, regardless of actions taken prior to assuming their gubernatorial position. This decision upheld the protection provided under Article 361 of the Constitution.
  • In the case of Dr S.C. Barat And Anr. vs Hari Vinayak Pataskar And Ors. (1961), a distinction was drawn between a Governor’s official and personal conduct. While complete immunity is granted for official actions, civil proceedings can be initiated with prior notice of two months for a Governor’s personal actions.
  • In the State of Rajasthan v. Union of India (1977), the Supreme Court clarified that while Governors enjoy immunity from criminal prosecution during their term, this immunity does not extend to actions undertaken outside the scope of their official duties or to private matters unrelated to their role as Governor.

 

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Prelims practise question

 

Q1. Consider the following statements:

  1. The governor is provided immunity against both the Criminal proceedings and the civil proceedings
  2. Governors are not immune from actions outside their official duties.

Which of the above statements is/are correct?

(a) 1 only

(b) 2 only

(c) Both 1 and 2

(d) Neither 1 nor 2

 

ANSWER: B

 

Q2. Which of the following statements is INCORRECT regarding Article 361?

(a) Governors have absolute immunity from criminal prosecution.

(b) Governors can be prosecuted for personal matters.

()c Governors are immune from civil proceedings.

(d) Governors are not immune from actions outside their official duties.

 

Answer: D

 

Mains practise question

 

Q1. Critically analyse the implications of the immunity granted to the President and Governors under Article 361. How does this immunity impact the principles of democracy and the rule of law in India?

Q2. Examine the need for reforms or amendments to Article 361 in light of evolving societal norms, judicial interpretations, and governance requirements. Propose potential changes to enhance accountability while preserving the functional autonomy of the President and Governors.

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