SC to Examine Article 361 Granting Immunity to Governors

What’s in today’s article?

• Why in News?
• What is the Role of a Governor in India?
• What is Article 361 of the Indian Constitution?
• What is the Woman Petitioner Seeking?
• Significance of the SC’s Decision to Examine Immunity Granted under Article 361

Why in News?

• The Supreme Court of India has agreed to examine a plea filed by a woman staff member of the West Bengal Raj Bhawan, who 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.

What is the Role of a Governor in India?

• Some important constitutional provisions:
  • Everything related to the office of Governor (appointment, powers, etc) have been discussed under Part VI (Article 153 to Article 162) of the Indian Constitution.
  • Article 153: There shall be a Governor for each State and the same person can be the Governor for two/more States.
  • Article 154: The executive power of the State shall be vested in the governor and shall be exercised by him/her in accordance with the Constitution of India.
  • Article 155: Governor of a State shall be appointed by the President by warrant under his hand and seal.
  • Article 156: The Governor shall hold office during the pleasure of the President, but his normal term of office will be five years.
• Role: It is stated that the Governor has a dual role - s/he is the constitutional head of state (bound by the advice of his/her council of ministers) and s/he functions as a vital link between the Union and the State govt.
• Functioning of the office over the years:
  • The Governor enjoys certain discretionary powers under the Constitution (Article 163), such as giving or withholding assent to a Bill passed by the state legislature, etc.
  • These powers enable governors to make critical decisions, particularly during times of political or administrative uncertainty.
  • However, these discretionary powers have resulted in friction with the state government as the Governors have been seen by opposition as an agent of the Centre acting on the behest of the central government.
• Can governors’ powers be reviewed? Although these powers are constitutionally granted, they are subject to judicial review to ensure they are exercised within legal and proper bounds.

What is Article 361 of the Indian Constitution?

• About Article 361:
  • It grants the President of India and governors of state immunity from legal proceedings over the duration of their term in office.
  • The article is an exception to Article 14 (right to equality) of the Constitution.
• Description of Article 361:
  • Criminal proceedings: No criminal cases can be initiated or continued against them, and no arrest or imprisonment orders can be issued by any court. 
  • Civil proceedings: The Article mandates a two-month notice for any civil proceedings related to personal acts.
  • No arrest or imprisonment: The Article restricts any arrest or imprisonment orders during their term.
• The aim of the Article: 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.

What is the Woman Petitioner Seeking?

• Call for immediate investigation:
  • An investigation is essential and cannot be deferred until the governor leaves office.
  • Hence, the immunity under Article 361 should not bar the investigation, especially given the time-sensitive nature of such probes.
• Framing specific guidelines: The plea asks for directions to frame specific guidelines under which governors enjoy immunity from criminal prosecution.
• Questioning absolute immunity:
  • The plea contends that the immunity under Article 361 should not be absolute, allowing illegal acts or acts that violate fundamental rights under Part III of the Constitution.
  • It argues that this immunity should not impair police powers to investigate the offence or name the perpetrator in a complaint or FIR. 

Significance of the SC’s Decision to Examine Immunity Granted under Article 361:

• It could have significant implications for -
  • The interpretation of constitutional protections for high office holders, and
  • The accountability mechanisms in place for addressing misconduct.

Q.1. What is the difference between the pardoning powers of the President and Governor?

The power of the President (and not the Governor) extends in cases where the punishment or sentence is by a Court Martial. The President can grant pardon (and not the Governor) in all cases where the sentence given is the sentence of death.

Q.2. What is the Governor’s role in lawmaking and where the controversy arises?

Article 200 of the Constitution states that a Bill shall be presented to the Governor (after being passed by the state legislature), who may give/ withhold assent to the Bill, or reserve it for President’s consideration. Since the article does not provide a timeline, Governors have often withheld assent to Bills for extended periods.

Source: Supreme Court agrees to examine constitutional provision granting immunity to Governors | IE | BS