SC to Re-examine ‘Immunity’ Granted to Governors: Revisiting late MP HV Kamath's arguments

Article 361 of the Indian Constitution states that: 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 that 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.

Further, is says, "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 and 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."

Regarding civil proceedings, it states, "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 therefor, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims."

What Next for Article 361?

Now, with the apex court agreeing to relook at this immunity clause, there will be re-examination and fresh interpretation of the phrases “criminal proceedings” and “process for the arrest or imprisonment” as stated in Articles 361(2) and 361(3).

As reported by the Live Law the petitioner in this case had argued that Article 361 does not bar police investigation against the Governor. She also argued that the Governor cannot claim blanket immunity in respect of criminal acts. Allowing such immunity would force her to wait for the Governor to demit office to initiate the trial, which is unreasonable and violates her fundamental rights.

It is important to note that Draft Article 302 which became Article 361 of the Constitution of India (when it was finally adopted in 1950) was discussed in the Constituent Assembly on September 9, 1949. During the discussion, one member found the phrase ‘during his term of office’ ambiguous and raised valid questions on the “blanket” immunity granted to the Governor.

What late MP HV Kamath argued?

HV Kamath, who was one of the most distinguished members of the Constituent Assembly made a pertinent point when he said: “With regard to clause (2) I have a slight difficulty. Clause (2) says that no criminal proceedings whatsoever shall be instituted or continued against the President or the Governor or the Ruler of a State in any court during his term of office. The doubt that has arisen in my mind is as to whether the President or the Governor or the Ruler has no liability for any criminal act committed by him during his term of office. Suppose for instance he commits a crime—God forbid that the President or the Governor or the Ruler of a State should be guilty of criminal conduct, but human nature is fallible—so if he, unfortunately, commits a criminal act, does this clause mean that no proceedings can be instituted against him during the whole prescribed term, or whether it means while he is in office only, that is to say, whether as soon as a prima facie case is made against him, the president should resign his office irrespective of the period put in by him; whether in the case of a Governor or a Ruler committing a criminal act, the President ought to remove him from office. The phrase “during his term of office” is rather ambiguous. I hope Dr. Ambedkar or Mr. Krishnamachari, whoever replies on behalf of the Drafting Committee; will throw some light on this matter and clarify the content of clause (2) of this article.

The origin of the immunity given to Governors or the head of the state is in the Latin maxim "rex non potest peccare," which translates into “the king can do no wrong”. However, during the debate on the provision of immunity accorded to the President and the Governor, HV Kamath questioned the extent of criminal immunity for the President and Governors, particularly regarding the initiation of proceedings against them for criminal acts. However, his objections were not accommodated and this Article was adopted without much debate.

A Look at Other Cases

After the commencement of the constitution in various landmark cases, the Indian Supreme Court attempted to examine this issue. In Dr SC Barat and Anr vs. Hari Vinayak Pataskar, a case decided in 1961, a distinction was made between the Governor's official and personal conduct.

In Rameshwar Prasad v Union of India, a case decided in 2006 the Supreme Court held that “the position in law is that the Governor enjoys complete immunity.”

While the various court judgments allowed the judicial review in respect of an action taken by the Governor, immunity granted by the constitution was upheld with some reinterpretation on different occasions.

Now, with the Supreme Court readying itself to examine this important issue afresh, the points made by HV Kamath can be a reference point.