Supreme Court to Examine Governor’s Constitutional Immunity

Recently, the Supreme Court of India agreed to hear a plea seeking to redefine the contours of the constitutional immunity enjoyed by the Governor of a state.

• A three-judge SC Bench took up the issue of Governor’s immunity after a contractual employee of the West Bengal Raj Bhavan moved a petition against the Governor, alleging sexual harassment.

What is the Petition Seeking?

The woman petitioner is seeking the following:

• Call for immediate investigation: The petitioner argues that victims should not be rendered ‘remediless’, forced to wait until the governor leaves office, which could delay justice and impact the trial.
• Framing Specific Guidelines: The plea asks for directions to frame specific guidelines under which governors enjoy immunity from criminal prosecution.
• Police Probe: A thorough investigation by the West Bengal Police into the allegations of sexual harassment.
• Protection and Compensation: Protection for her and her family, and compensation from the government for her loss of reputation and dignity due to the state machinery’s failure to protect her identity.
• Questioning Absolute Immunity: The plea contends that the immunity under Article 361 should not be absolute, allowing illegal acts or acts that violate fundamental rights under Part III of the Constitution. 
  • It argues that this immunity should not impair police powers to investigate the offense or name the perpetrator in a complaint or FIR.  

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About Governor of a State

Part VI of the Constitution of India deals with the state executive. The state executive consists of the Governor, the Chief Minister, the Council of Ministers and the Advocate-General of the State.

• A Nominal Head: Governor is the nominal head at the state level.
  • Article 153 to Article 167 deals with the State Executive of which the Governor is the titular head and the Chief Minister who heads the Council of Ministers is the real head.
  • They also act as an agent of the central government. Thus, the office of governor serves a dual role.
• Appointment: Governor is appointed by the President under his/her hand and seal.
  • In 1979, the Supreme Court said that the office of governor is not an employment under the central government. 
  • It is an independent constitutional office and is not under the control of or subordinate to the central government.
  • India adopted the Canadian Model of appointment of Governor by the center.
    • Canadian Model: The governor of a province (state) is appointed by the Governor-General (Centre).
• Oath: Administered by the Chief Justice of the concerned High Court.
• Qualification: He/she should be a citizen of India and should have completed the age of 35 years.
  • Conventions for Appointment: He/she should be not from a state where he is appointed.
    • While appointing the governor, the President is required to consult the Chief Minister of the state concerned.
• Term of Office: He/she holds the office for a term of five years. However, his/her term is subject to the pleasure of the President.
  • The constitution has not laid down any grounds for the removal of the governor by president
  • A governor can also hold office beyond his/her term until his/her successor assumes charge.
• Evolution of the Governor’s Role from Colonial Agent to Constitutional Head:
  • GoI Act 1858: Transferred the responsibility of administration of India from the East India Company to the British Crown. It made them of the province an agent of the Crown working through the Governor General.
  • Montague-Chelmsford reforms, 1919: made small changes in the provincial government with an insignificant level of responsible government being introduced .
  • GoI Act, 1935: gave provincial autonomy with them being required to act on the advice of the Council of Ministers.
  • After 1947: The Adaptation order of 1947 made their function as per aid and advice of the council of ministers.
• Role of Governor: Governors in India have the responsibility of upholding and enforcing the Constitution and laws. The Constitution of India envisions a Parliamentary system for the states, similar to the governmental structure at the Centre.
  • Smooth Functioning of the State Government: According to Articles 153 and 154 of the Constitution, governors ensure the smooth functioning of state governments within the constitutional framework.
  • Executive Role: Article 154 specifies that the executive power of the State shall be vested in the governor and shall be exercised by him either directly or through officers subordinate to him/her in accordance with the Constitution of India.
• Powers: Governors in India possess discretionary constitutional powers, as defined by the Constitution, which they can exercise in specific situations. These powers enable governors to make critical decisions in the executive realm, particularly during times of political or administrative uncertainty.
• • A Governor possesses executive, legislative, financial and judicial powers that are more or less similar to those of the President of India. However, unlike the President, the Governor does not hold Diplomatic, Military, or Emergency powers.
  • Although these powers are constitutionally granted, they are subject to judicial review to ensure they are exercised within legal and proper bounds.

About Constitutional Immunity

It shields the President and Governor from criminal prosecution, and bars any judicial scrutiny of their actions.

• Origins of Governor’s immunity: The protection given to the President and the Governor can be traced to the Latin maxim rex non potest peccare or “the king can do no wrong”, which is rooted in English legal traditions.
• Article 361 of the Indian Constitution: It states that the President and the Governors shall not be answerable to any court for the exercise and performance of the powers and duties of his/her office or for any act done by him in the exercise and performance of those powers and duties, unless it is by Parliament for impeachment from office.
  • Aim: To ensure that they are not answerable to any court for the exercise and performance of their official powers and duties, nor for any acts done in the course of these duties.
  • Criminal Proceedings: No criminal cases can be initiated or continued against them, and no arrest or imprisonment orders can be issued by any court under Clause (2) of Article 361.  
  • Civil Proceedings: The Article mandates a two-month notice for any civil proceedings related to personal acts.
    • Additionally, Clause (3) of Article 361 restricts any arrest or imprisonment orders during their term.
    • No process for the arrest or imprisonment of the President, or the Governor of a State, shall be issued from any court during his/her term of office.
  • Exception to Article 14: This article is an exception to Article 14 (right to equality) of the Constitution and provides that the President or the Governor is not answerable to any court for the exercise of the powers and duties of his/her office.
• Discussion in the Constituent Assembly: The Constituent Assembly discussed the introduction of Article 361 or Draft Article 302 as it was known then on September 8, 1949. 
  • Concerns Raised: On criminal immunity, Assembly Member H V Kamath raised certain following prescient questions:
    • Does this clause mean that no proceedings can be instituted against the President or the Governor during the whole prescribed term, or whether it means while he is in office only. 
    • If the President should remove “a Governor or a Ruler committing a criminal act” in case a prima facie case is made against the Governor concerned.
  • However, the article was adopted without any further debate on criminal immunity. 
    • In the last decade, the courts have shed light on what it means for criminal proceedings to be “instituted” against the Governor, and when the protection under Article 361(2) lapses.

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Various Judicial Pronouncements Related to Constitutional Immunity

Following are the various cases related to Constitutional Immunity in India:

• Rameshwar Prasad vs. Union of India, 2006:  The SC had to deal with the Governor’s immunity in civil cases after recommending the Bihar Assembly’s dissolution in 2005.
  • Ruling by the Court: In this case, the SC said that the Governor enjoys “complete immunity” under Article 361(1), however, it does not take away the power of the Court to examine the validity of the action including on the ground of malafides i.e., actions taken in bad faith.
    • The ruling is not for criminal complaints but for exercising discretionary constitutional powers or any official duties.
• Judgment by the Madhya Pradesh High Court: In 2015, the Court categorically held that Article 361(2) “guarantees absolute protection from any malicious campaign or publicity against the Head of a State, so as not to undermine the solemnity of that office”.
  • The observation came in a case pertaining to the Vyapam scam. The Governor was one of the accused in the scam, and the HC had to determine if the registration of an FIR against him would amount to criminal proceedings being “instituted” in the case.
  • Ruling by the Court: The HC allowed investigation in that FIR against other accused, while “effacing” the name of the Governor till he occupied the office. As he died in November 2016, the SC did not rule in appeal.
• Demolition of the Babri Masjid Case: In 2017, the Supreme Court allowed fresh charges of criminal conspiracy against UP Chief Minister Kalyan Singh in the 1992 demolition of the Babri Masjid. However, the trial did not take place since he was then the Governor of Rajasthan.
  • Ruling by the Court: The court held that, being the Governor of Rajasthan, he is entitled to immunity under Article 361 of the Constitution as long as he remains Governor of Rajasthan. 
    • The Court of Sessions will frame charges and move against him as soon as he ceases to be Governor.

Major Constitutional Provisions associated with the Governor in India

The Governor has to exercise his/her powers and functions with the aid and advice of the Council of Ministers headed by the chief minister, except in matters in which he is required to act at his/her discretion (i.e., without the advice of ministers).

• Article 153: There shall be a Governor for each State provided that nothing in this article shall prevent the appointment of the same person as Governor for two or more States (7th Constitutional Amendment Act 1956).
• Article 154: The executive power of the state shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.
  • Nothing in this article shall:
    • Be deemed to transfer to them any functions conferred by any existing law on any other authority; or
    • Prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor.
• Article 155: It deals with the appointment of Governors in India.
• Article 163: There shall be a Council of Ministers with the chief minister as the head to aid and advise them in the exercise of his/her functions, except insofar as he is required to exercise his/her functions in his/her discretion.
• Article 164: The Council of Ministers shall be collectively responsible to the legislative assembly of the state, the foundation of the Parliamentary system of government.
• Difference of Constitutional Position of Governor from the President: While the constitution envisages the possibility of the Governor (Article 163) acting at times in his/her discretion, no such possibility has been envisages for the President
  • After the 42nd Constitutional Amendment Act, ministerial advice was made binding on the President, no such provision has been made with respect to the Governor so far.

Various Cases and Recommendations associated with Governor’s Office in India

Following are the various cases and recommendations associated with Governor’s Office in India:

• The Administrative Reforms Commission, 1969: It recommended that non-partisan persons having long experience in public life and administration should be appointed as the Governors of a State.
• Shamsher Singh vs State of Punjab, 1974: The Supreme Court held that the Governor is bound to act in accordance with the aid and advice of the Council of Ministers headed by the Chief Minister. 
• Sarkaria Commission Report, 1988: It provides various important recommendations such as 
  • The Governor should be a detached figure without intense political links or should not have taken part in politics in the recent past.
  • Governors must not be removed before completion of their five-year tenure, except in rare and compelling circumstances and 
  • Article 356 should be used very sparingly and as a matter of last resort.
• SR Bommai vs Union of India, 1994: It was concerned with the use of Article 356 and the Governor’s power to dismiss a State Government. The Supreme Court ruled that whether the State Government has the majority should be tested on the floor of the House. 
  • It should not be based on the subjective assessment of the Governor.
• Rameshwar Prasad Case, 2006: The Supreme Court held that motivated and whimsical conduct of the Governor in recommending President’s rule is amenable to judicial review.
• BP Singhal vs Union of India, 2010: The Supreme Court ruled that even though the President could dismiss a Governor without having to provide reasons for doing so, this power could not be exercised in an “arbitrary, capricious or unreasonable manner”.
• Nabam Rebia vs Deputy Speaker, 2016: The Supreme Court confirmed that the Governor does not enjoy broad discretionary powers and is always subject to Constitutional standards. 
• National Commission to Review the Working of the Constitution (NCRWC), 2002: The Governor should be appointed by a Committee comprising the Prime Minister, Home Minister, Speaker of the Lok Sabha, and the Chief Minister of the State concerned.
• The Second Administrative Reforms Commission (ARC), 2008: The Inter-State Council needs to come up with some guidelines for governors to follow when they are using their discretionary power.
• Punchhi Commission, 2010: It recommended that the phrase “during the pleasure of the President” should be deleted from the Constitution and a fixed term of 5 years and removed through an impeachment process (similar to that of the President) by the State Legislature. 

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Various Concerns Associated with the Office of Governor

Following are the various challenges associated with Governor’s Office in India:

• Appointment: The elected government at the state is not even consulted while making appointments of the Governors. 
  • Also, politicians and former bureaucrats affiliated with the ruling party have been appointed in several instances as Governors, which led to questions on the post’s impartiality and non-partisanship.
  • Article 155 says that a governor should be appointed (rather than elected) from amongst persons of high status with eminence in public. 
• Influence of the Central Government: If the President withdraws his/her pleasure before the completion of five years, the Governor has to step down. Since the President acts on the aid and advice of the Prime Minister and the Union Council of Ministers, in effect, the Governor is appointed and removed by the central government.
  • Under Article 156, “the Governor shall hold office during the pleasure of the President”. 
• Arbitrary Removal: As there are no written grounds or procedures for removing governors, this leads to arbitrary removals especially when there is change of political power at the Union Government.
• On President’s Rule: The discretionary power of the Governor recommends the President’s rule (Article 356) on account of the failure of constitutional machinery in the state that has not always been based on ‘objective material’. 
  • Ambedkar hoped that such articles would never be called into operation and that they would remain a dead letter.
• No Clear Distinction Between Constitutional and Statutory Role: The constitutional mandate of the Governor to act on advice of the council of ministers is not clearly distinguished from his/her statutory authority as chancellor and has resulted in many conflicts between the governor and the state government. 
• On Convening and Dissolution of Assembly: The Governor has been associated with the politics of delay in the convening and dissolution of state legislative assembly.
• Delay in giving Assent to the Bills: As there is no time limit set for how long a Governor can withhold assent to a Bill passed by the State Legislature, it is misused by the Governor at various times.
  • Also, as per Article 200 of the Constitution, the governor can reserve certain types of bills passed by the State Legislature for the President’s consideration and the President can either give assent to it or ask the governor to send it back for the state legislature to reconsider it, along with his/her comments.
• Misuse of Discretionary power on Appointment of Chief Minister: Governors have been accused of playing a partisan role in the appointment of Chief Minister in cases where a single party lacks the majority.
  • After elections in the state, there is a convention to invite the largest party to form government in the state, which has been broken many times.

Way Forward

In context of misuse of Governor’s absolute immunity in India, following measures are suggested:

• Need to Frame Specific Guidelines: The time has come to frame specific guidelines under which governors enjoy immunity from criminal prosecution as various cases of misuse of immunity have been always in the news.
• Thorough Police Probe: A thorough investigation by the Police is required into the serious allegations on the Governor such as of the sexual harassment.
• Protection and Compensation: If misuse of immunity has been proven or even the case is considered, then protection of the victim and his/her family with adequate compensation should be provided.
• Bar on Absolute Immunity: The immunity under Article 361 should not be absolute, illegal acts or acts that violate fundamental rights under Part III of the Constitution should be exempted from the clause of absolute immunity. 

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Conclusion

In India, this discussion of immunity has to be viewed in the larger context of the tussle between the office of the Governor, and governments in opposition-ruled states. The debate on whether executive immunity is a blanket protection has been taking place in other countries as well. 

• Example: Recently, the US Supreme Court decided that any former US President is entitled to “absolute immunity” from criminal prosecution for official acts but not unofficial or personal acts. 

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