22-July-2024-Special-Article

IMMUNITY OF GOVERNORS UNDER ARTICLE 361: A LEGAL EXAMINATION 

The Supreme Court of India is set to review the immunity granted to Governors under Article 361 of the Constitution. This examination arises from a plea involving the West Bengal Governor in a sexual harassment case.  

Immunities Provided to the Governor under Article 361 

Origin of Governor’s Immunity 

• The concept of immunity for Governors is rooted in the Latin maxim “rex non potest peccare,” meaning “the king can do no wrong.” 

• During the Constituent Assembly debates, member H V Kamath raised concerns about the extent of criminal immunity for the President and Governors, but Article 361 was adopted without significant changes. 

Immunities under Article 361 

• Non-Answerable to Courts: Article 361(1) states that the President or Governor is not answerable to any court for the exercise of their powers and duties. 

• Protection from Criminal Proceedings: Article 361(2) ensures that no criminal proceedings can be initiated or continued against the President or Governor during their term. 

• No Arrest: Article 361(3) prohibits arrest or imprisonment processes against the President or Governor during their term. 

• Protection from Civil Proceedings: Article 361(4) states that no civil lawsuits can be filed against the President or Governor during their term for any personal acts without giving two months’ written notice. 

Court Interpretations of Article 361 

• Dr SC Barat And Anr vs. Hari Vinayak Pataskar (1961): This case distinguished between official and personal conduct of Governors, allowing civil proceedings with prior notice for personal actions. 

• Rameshwar Prasad vs. Union of India (2006): The Supreme Court upheld the Governor’s “complete immunity” for constitutional actions but allowed judicial scrutiny for actions done with malafide intent. 

• Madhya Pradesh High Court (2015): In the Vyapam scam case, the court ruled Governor Ram Naresh Yadav had absolute protection under Article 361(2), shielding him from investigation during his term. 

• State of UP vs. Kalyan Singh (2017): The Supreme Court confirmed that Kalyan Singh was entitled to immunity under Article 361 during his term as Governor. 

• Telangana High Court (2024): The court noted that the immunity provided by Article 361 is personal and does not prevent judicial review of the Governor’s actions. 

Recommendations for Reforms in the Office of the Governor 

Sarkaria Commission (1988) 

• The President should appoint Governors after consulting the Chief Minister of the state. 

• Governors should be individuals of eminence and not from the state they are appointed to. 

• Governors should not be removed before their term ends, except under rare circumstances. 

• Governors should act as a bridge between the Centre and the state, exercising discretionary powers judiciously. 

Venkatachaliah Commission (NCRWC) (2002) 

• The appointment of Governors should involve a committee including the Prime Minister, Home Minister, Lok Sabha Speaker, and the concerned state’s Chief Minister. 

• Governors should complete their five-year term unless removed by the President for proven misbehavior or incapacity. 

• The Chief Minister should be consulted before removing a Governor. 

• Governors should not interfere in state administration and should use discretionary powers sparingly. 

Punchhi Commission (2010) 

• Recommended removing the phrase “during the pleasure of the President” to ensure greater stability for Governors. 

• Proposed that Governors should be removed only by a resolution of the state legislature. 

Constitutional Provisions Related to the Governor 

• Article 153: States there shall be a Governor for each state, and a person can be appointed as Governor for multiple states. 

• Articles 157 and 158: Detail eligibility requirements for the Governor’s post. 

• Article 161: Grants the Governor the power to pardon, reprieve, etc. 

• Article 163: Establishes a Council of Ministers to aid and advise the Governor. 

• Article 164: The Governor appoints the Chief Minister and other Ministers. 

• Article 200: The Governor assents to, withholds assent from, or reserves bills for the President’s consideration. 

• Article 213: Allows the Governor to promulgate ordinances under certain circumstances. 

Conclusion  

The immunity granted to Governors under Article 361 is significant for ensuring their independence and the smooth functioning of their office. However, the balance between immunity and accountability is crucial. The Supreme Court’s review will be instrumental in defining the scope and limitations of this immunity, impacting the broader framework of governance and justice in India. 

Mains Question: 

1. Discuss the constitutional provisions under Article 361 regarding the immunity of Governors in India and evaluate their implications on governance and accountability. (150 WORDS)