Source: The Indian Express 

Introduction 

The Supreme Court of India has agreed to hear a plea challenging the scope of constitutional immunity granted to state governors under Article 361. This case could potentially redefine the legal protections afforded to governors and impact their role as constitutional heads of states. The Court has sought input from the Attorney General and issued notices to relevant parties, recognizing the significant implications of this matter. 

What is the Background and Court Judgment in the Current Case? 

Background: 

• A former employee of West Bengal Raj Bhavan filed sexual harassment allegations against Governor. 
• The complainant filed a FIR against the Governor and three staff members, including his Officer-On-Special Duty (OSD). 
• The Governor claimed constitutional immunity from criminal prosecution under Article 361. 
• The Governor sought removal of Kolkata Police officials investigating the case, citing violation of his immunity. 
• The Calcutta High Court temporarily stayed the probe against the OSD and other Raj Bhavan staffers. 

Judgement: 

• The Supreme Court has agreed to hear the plea challenging the scope of governors' immunity under Article 361. 
• Notices have been issued to the state of West Bengal and other relevant parties. 
• The petitioner has been given liberty to add the Union of India as a party to the case. 

What is Article 361 of Indian Constitution? 

• Article 361 deals with Protection of President and Governors and Rajpramukhs. 
• Immunity from Judicial Scrutiny: The President and Governors shall not be answerable to any court of law for the exercise and performance of the powers and duties of their office, or for any act done or purporting to be done by them in the exercise and performance of said powers and duties. 
• Presidential Impeachment Exception: Notwithstanding the aforementioned immunity, the conduct of the President may be subject to review by any court, tribunal, or body appointed or designated by either House of Parliament for the investigation of a charge under Article 61. 
• Preservation of Right to Sue Government: Nothing in this Article 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. 
• Criminal Proceedings Prohibition: Article 361(2) state that no criminal proceedings whatsoever shall be instituted or continued against the President or the Governor of a State in any court during their term of office. 
• Immunity from Arrest: Article 361(3) state that no process for the arrest or imprisonment of the President or the Governor of a State shall issue from any court during their term of office. 
• Civil Proceedings for Personal Acts: Article 361(4) state that no civil proceedings in which relief is claimed against the President or the Governor of a State shall be instituted during their term of office in any court in respect of any act done or purporting to be done by them in their personal capacity, whether before or after they entered upon their office, 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 their office stating: 
  • The nature of the proceedings  
  • The cause of action therefor  
  • The name, description, and place of residence of the party by whom such proceedings are to be instituted  
  • The relief which the party claims 
• Temporal Scope: The immunities and protections conferred by this Article shall remain in effect for the duration of the term of office of the President or Governor. 
• Interpretation: The provisions of Article 361 shall be construed strictly, but in a manner consistent with the high constitutional offices they seek to protect, balancing the need for immunity with the principles of accountability inherent in a democratic republic. 

From Where the concept of Governor Immunity Origin? 

• The immunity derives from the Latin maxim law principle of "rex non potest peccare" (the king can do no wrong), adapted for modern constitutional governance. 
• The Constituent Assembly debated Draft Article 302 (now Article 361) on September 3, 1949. Member H.V. Kamath raised pertinent queries regarding the scope and duration of criminal immunity for the President and Governors. 
• Article 361(2) prohibits the institution or continuation of criminal proceedings against the President or Governors during their term of office. 
• The question of whether the President should have the authority to remove Governor prima facie implicated in criminal conduct was raised but not conclusively addressed during the Constituent Assembly debates. 
• In recent years, the judiciary has provided clarification on the interpretation of Article 361(2), particularly regarding:  
  • The definition and scope of "institution" of criminal proceedings against a Governor.  
  • The precise moment when the protection under Article 361(2) ceases to apply. 
• The provision seeks to balance the need for unfettered execution of high constitutional offices with the principles of rule of law and accountability in a democratic republic. 

Historical Cases Related to Article 361  

• State v. Kalyan Singh & Ors (2017): The Supreme Court upheld the immunity of Kalyan Singh as Governor of Rajasthan in the Babri Masjid demolition case. It ruled that criminal proceedings would resume once he ceased to be Governor. 
• Vyapam Scam Case (2015): The Madhya Pradesh High Court held that Article 361(2) provides absolute protection to the Head of State from malicious campaigns. It allowed investigation against other accused while "effacing" the Governor's name until he left office. 
• Rameshwar Prasad v. Union of India (2006): The Supreme Court clarified that while Governors enjoy complete immunity under Article 361(1) for exercising constitutional powers, courts retain the authority to examine the validity of such actions, including on grounds of mala fides. 
• Scope of Immunity: These cases collectively establish that: 
  • Criminal proceedings cannot be instituted or continued against a sitting Governor. 
  • Investigations may proceed against other accused, but the Governor's name must be removed while in office.  
  • The immunity is temporal, ceasing when the Governor leaves office.  
  • Courts can review the Governor's actions for validity and mala fides, even if they cannot prosecute the Governor directly. 
• The jurisprudence attempts to balance the need for gubernatorial immunity with judicial oversight and the principles of constitutional governance. 

What is the International Ruling on President Immunity? 

• United States:  
  • Nixon v. Fitzgerald (1982): The U.S. Supreme Court held that presidents have absolute immunity from civil damages liability for official acts. 
  • Clinton v. Jones (1997): The Court ruled that sitting presidents do not have immunity from civil litigation for actions unrelated to their official duties. 
• France:  
  • The French Constitutional Council in 1999 ruled that sitting presidents have immunity from prosecution but can be tried after leaving office. 
• International Criminal Court (ICC):  
  • The Rome Statute does not recognize official capacity, including as a head of state, as a bar to prosecution for international crimes. 
• United Kingdom:  
  • While the monarch has absolute immunity under the principle of sovereign immunity, the Prime Minister does not enjoy such blanket protection. Absolute immunity from official act but not for unofficial act. 
• Israel:  
  • The Israeli Supreme Court in 2020 ruled that a sitting prime minister can be prosecuted for criminal offenses. 
• Brazil:  
  • The Brazilian Supreme Court in 2021 ruled that sitting presidents can be investigated for acts committed before taking office. 

Conclusion  

The Supreme Court's decision on the scope of governors' immunity under Article 361 could significantly impact the balance between gubernatorial protection and accountability in India. While Article 361 provides extensive immunity to governors, recent judicial interpretations have sought to define its limits, particularly in cases of alleged criminal conduct.