Immunity to Governors under Article 361

General Studies Paper -2 

Context: The Supreme Court agreed to examine the contours of Article 361 of the Constitution which grants “blanket immunity” to governors from any kind of criminal prosecution.

Background

• A woman staff member of the West Bengal Raj Bhawan, has accused Governor CV Ananda Bose of sexual harassment.
• The plea challenges the immunity granted to the governor of a state under Article 361 of the Indian Constitution and seeks several directions and investigations.

What is Article 361?

• The Governors of state receive immunity from legal proceedings over the duration of their term in office under Article 361 of the Constitution.
• The aim of the Article is 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.
  • Clause (3) of Article 361 restricts any arrest or imprisonment orders during their term.
• The 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 office.

Immunity power of the Governor

• Ceases to be in office: The police can act only after the Governor ceases to be in office, which is when either the Governor resigns or no longer enjoys the confidence of the President.”
• Rameshwar Prasad v Union of India: In the landmark 2006 ruling in Rameshwar Prasad v Union of India, that outlined the immunity enjoyed by the Governor “even on allegation of personal malafides,” the Supreme Court held that “the position in law, is that the Governor enjoys complete immunity.”

What is the role of a governor in India?

• Governors in India have the responsibility of upholding and enforcing the Constitution and laws.
• According to Articles 153 and 154 of the Constitution, governors ensure the smooth functioning of state governments within the constitutional framework.

Concluding Remarks

• Governors in India possess discretionary constitutional powers, which enable them to make critical decisions in the executive realm, particularly during times of political or administrative uncertainty.
• Although these powers are constitutionally granted, they are subject to judicial review to ensure they are exercised within legal and proper bounds.