Is immunity for the President and Governors absolute?

Context

In a significant legal development, a three-judge Bench headed by Chief Justice of India D.Y. Chandrachud has involved the Union government and sought the assistance of the Attorney General of India to scrutinize whether the “blanket” immunity granted under Article 361 to the President and Governors from criminal proceedings while in office undermines fairness, constitutional morality, and violates fundamental rights to equal protection of the law and fair trial.

This inquiry was triggered by a petition alleging sexual harassment by a sitting Governor, raising critical questions about the extent and implications of constitutional immunity.

Relevance:

GS02 (Polity)

Dimensions of the Article:

About the Immunity to Governors and Presidents
What Is the Issue?
Need to Address the Issue

About the Immunity to Governors and Presidents

Article 361 of the Indian Constitution provides immunity to the President and Governors from legal proceedings. Specifically, Article 361(1) ensures that they are not answerable to any court for actions taken while performing their duties. This immunity stems from the British legal principle that “the King can do no wrong,” reflecting a belief that heads of state should not be hindered by legal actions while in office.
However, this immunity is not absolute. The first proviso to Article 361(1) allows for the President’s conduct to be reviewed by bodies designated by Parliament during impeachment proceedings under Article 61. The second proviso states that immunity does not prevent a person from suing the government. The contentious clause, Article 361(2), prohibits any criminal proceedings against the President or Governors during their term of office. This clause is currently under judicial scrutiny to determine its boundaries and implications.

What Is the Issue?

The immediate issue arose from a petition by a contractual woman employee at the Raj Bhavan, who accused West Bengal Governor C.V. Ananda Bose of sexual harassment and molestation.
The petitioner, identified as ‘XXX’ for privacy, argued that the absolute immunity granted to Governors under Article 361 is anachronistic and unjust. She contended that this immunity allowed the police to dismiss her complaint lightly, citing the Governor’s immunity.
The petitioner expressed concerns that waiting for the Governor to leave office before initiating criminal proceedings could deny her timely justice. She urged the Supreme Court to direct the West Bengal police to investigate her complaint and to frame guidelines that clarify the extent of the immunity granted under Article 361.

Need to Address the Issue

The necessity to address this issue arises from several critical factors:

Fairness and Constitutional Morality: Absolute immunity may protect high offices from frivolous lawsuits but can also shield them from accountability for serious crimes. This imbalance challenges the principles of fairness and constitutional morality.
Fundamental Rights: The petitioner argued that the Governor’s actions violated her fundamental right to life under Article 21. Absolute immunity should not override an individual’s fundamental rights.
Judicial Precedents: In previous cases like Rameshwar Prasad vs. Union of India, the Supreme Court interpreted civil immunity under Article 361(4) to not protect malafide actions. Drawing parallels, criminal immunity should also be scrutinized to prevent misuse.

Way Forward

Addressing the issue requires a nuanced approach that balances the need for immunity with the principles of justice and accountability. The following steps can be considered:

Judicial Interpretation: The Supreme Court needs to provide a clear interpretation of Article 361(2) to delineate the boundaries of immunity. This interpretation should ensure that immunity does not shield illegal actions, especially those infringing on fundamental rights.
Guidelines for Immunity: The court should frame guidelines that qualify the extent of immunity. These guidelines should clarify that while performing official duties, immunity stands, but for personal illegal acts, immunity should not obstruct investigation and accountability.
Empowering Investigation: The judiciary should reinforce that police investigations can proceed against Governors for alleged criminal acts without waiting for them to demit office. This would ensure timely justice and prevent misuse of immunity.
Legislative Review: Parliament might consider reviewing Article 361 to address ambiguities and ensure it aligns with contemporary principles of justice and accountability. This could involve amendments that clearly differentiate between acts performed in official capacity and personal misconduct.
Protection for Victims: Mechanisms should be established to protect victims who bring allegations against high constitutional authorities. This includes ensuring their complaints are taken seriously and investigated impartially.

Conclusion

The case before the Supreme Court concerning the immunity of Governors and the President under Article 361 raises profound questions about constitutional principles, fairness, and justice.

The absolute immunity currently provided can potentially undermine the fundamental rights of individuals and shield serious misconduct.
A balanced judicial interpretation and possible legislative amendments are essential to ensure that immunity serves its intended purpose without becoming a tool for evading accountability.
This approach will uphold constitutional morality and protect the rights of citizens, ensuring that no one, irrespective of their position, is above the law.