Monday, May 20, 2024

Governor’s immunity from prosecution


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The editorial “Raj Bhavan scandals” (ST May 6, 2024) made interesting reading. If the allegation is true why should the Governor of West Bengal worry because Article 361 unequivocally says that the President, the Governor or the Rajpramukh of any 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.” The provision also goes on to bar institution or continuation of any criminal proceedings against the President or the Governor in any court, during his term of office. Sub-Clause 3 of Article 361 adds “No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office”.
In a landmark judgment in 2006, the Supreme Court had clarified that while Article 361 grants a Governor “complete immunity,” there are exceptions. “In terms of Article 361, the Governor enjoys complete immunity. Governor is not answerable to any Court for exercise and performance of powers and duties of his office or for any act done or purporting to be done by him in the exercise of those powers and duties. However, such immunity does not take away the powers of the Court to examine the validity of the action including on the ground of mala fides,” the court had ruled.
One recalls that in 2017, Article 361 came to the rescue of then Rajasthan governor Kalyan Singh in the criminal conspiracy case related to demolition of Babri Masjid, when the Supreme Court revived the charges against L K Advani, Vinay Katiar, Uma Bharati, Sadhvi Rithambara, Murli Manohar Joshi and Vishnu Hari Dalmia. The apex court had asked the Court of Sessions in Lucknow to frame the additional charge of criminal conspiracy against them. However, with respect to Kalyan Singh, the Supreme Court had asserted, “Mr. Kalyan Singh, being the Governor of Rajasthan, is entitled to immunity under Article 361 of the Constitution as long as he remains Governor of Rajasthan. The Court of Sessions will frame charges and move against him as soon as he ceases to be Governor.” In 2017, Meghalaya Governor V. Shanmuganathan resigned after facing sexual harassment charges. Constitutional expert and former Secretary General of Lok Sabha P.D.T Achary says that the immunity under Article 361 is not lifelong. “It is only during the tenure of a Governor or the President tenure that the immunity applies. It is not lifelong immunity.”
Yours etc;
VK Lyngdoh,
Via email

Governor immune to criminality under Section 361

Founders of the Constitution had incorporated section 361 in the Constitution and Governors were made immune to any criminal act because it was considered that Governors were beyond such acts. Now that the Governor of West Bengal is alleged to have sexually abused a woman member of his staff it is important to probe the matter, otherwise this will tarnish the image of this country. The complaint lodged by a female contract staffer of the Kolkata Raj Bhavan has come at a most sensitive time in the affairs of West Bengal when the state is going through a multi-phase Lok Sabha election and the person against whom the allegations have been made is the Governor of the State. It is not as if governors have not been. caught in compromising situations. Although they have legal immunity but moral immunity is in their hands.
Hence in the past only persons with high moral integrity were appointed to such posts. Given the peculiar nature of West Bengal politics which is an extreme case of bristling Centre-State relations, there is no knowing whether it is a motivated complaint or whether Governor CV Ananda Bose represents the patriarchal side of the general misogyny that rules the country because in case of another Governor also who is now chairman of Rajya Sabha there were frequent unnecessary news of tussles between Chief Minister, Mamata Banerjee and the Governor. It would be in the fitness of things to say that anyone occupying high constitutional office should, like Caesar’s wife, be above suspicion and his/her behaviour must be so impeccable as to be way above the casting of the least aspersion in terms of sexual behaviour. There should be no iota of doubt in their behaviour. Regarding any such allegations we have the example of Lal Krishna Advani who submitted his resignation within minutes of allegations being levelled against him on the basis of the Jain hawala diary.
Some Governors are politically active as is the trend these days particularly in Opposition-ruled states such as Kerala, Tamil Nadu and Punjab where problems are being created by Governors so much so, the Supreme Court had to reprimand the Governor of Tamil Nadu to discharge his constitutional duties. In the present case of the West Bengal Governor there is little room for anyone to say there cannot be smoke without fire when a woman comes forward with a police complaint of sexual harassment.
People in power appear to be cavalier when it comes to their dealings with women. The recent case of sexual harassment against women wrestlers by a BJP leader and that of a Chief Minister who had to adopt his biological child are ugly examples. Presently the case of the Hassan MP Prajwal Revanna, grandson of former Prime Minister, HD Deva Gowda acutely reflects how authority tends to prevaricate when it comes to acting by the book against those wielding political power and how the image of the country is tarnished when the grandson of a former Prime Minister is involved in a sex scandal.
The #MeToo movement of the 2010s that sprang up in the US taught us that any complaint of sexual harassment of a person of any sex must be thoroughly investigated, no matter how high his or her place in society or in the rungs of authority is. In India also many reputed persons have had to face the music and even an MP had to lose his ministership. A big attitudinal change must come about in men, who are more often accused of being perpetrators of sexual harassment, with those accused of such deviant behaviour forced to face probes and clear their names if they are innocent. It is not so much the law as the test of morality that must be passed to show that men can control the beast in them.
Article 361 of the Constitution says the President and Governors have certain immunities as mentioned in the following clauses: (1)They cannot be held accountable in court for their actions or decisions while in office, “for the exercise and performance of the powers and duties of the office or for any act done or purporting to be done in the exercise and performance of those powers and duties.” (2) No criminal cases can be filed against them in any court” during their term. (3) They cannot be arrested or imprisoned during their term. (4) Civil proceedings against them for personal actions, whether before or after they entered office, can only be initiated after a two-month notice, specifying the nature of the proceedings and relief sought.
Yours etc.,
Yash Pal Ralhan,
Via email


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