Can the Governor be an accused? A look into the Constitutional immunity of the Governor
Article 361 of the Constitution confers upon the President and the Governor absolute personal immunity regarding acts while exercising official powers.
The recent allegations of sexual assault against West Bengal Governor C.V. Ananda Bose have raised important questions regarding the immunity enjoyed by the Governor’s office under the Constitution of India.
The West Bengal police are presently investigating allegations of sexual harassment levelled against Bose by a contractual worker at the Raj Bhawan. Bose has challenged the investigation, saying it violates the Constitutional immunity enjoyed by governors and has instructed the Raj Bhawan to ignore any police communication.
Contours of the Constitutional immunity on the Governor’s office
Article 361 of the Constitution of India confers upon the President and the Governor’s office absolute personal immunity regarding acts done or purported to be done while exercising official powers and discharging duties. Thus, a governor cannot be personally held liable for giving assent to a bill or any other similar act.
However, it is clause 2 of Article 361, which is being debated. Clause 2 grants complete immunity to the President and Governor and states that no criminal proceedings whatsoever shall be instituted against them. The Courts have on different occasions analysed this provision.
An early case that looked into the scope of the Article was in 1952 when Justice Vivian Bose was called upon to adjudge the exercise of the power of the Governor to nominate members to the State legislature in Biman Chandra Bose v. Governor, West Bengal. The judge noted that regarding official acts or omissions, even those which were incidental, he enjoyed absolute immunity. However, regarding acts done in a personal capacity wherein civil proceedings may be instituted, there existed a partial bar requiring the party instituting the suit to issue a notice to the Governor and act after a period of two months.
This view was re-affirmed in M. Gnanamani v. His Excellency the Governor of Andhra in 1954. The Andhra Pradesh High Court noted that the Governor could not be questioned for official acts done in the exercise of the powers conferred on him, so long as he is not guilty of dishonesty or bad faith. The Court also noted that the aggrieved person was free to bring appropriate action against the government in question.
Court's interpretations
Different High Courts analysed the extent of the immunity enjoyed by the Governor. However, the landmark judgment with regard to the provision came in 2006 in the Rameshwar Prasad v. State of Bihar case.
In this case, the Supreme Court was reviewing the Governor's sudden imposition of the President’s rule in Bihar. On the issue of immunity, the Court ruled that while the Governor enjoys personal immunity from being held accountable, his actions are still open to challenge. On the personal immunity, the Court observed, “The personal immunity under Article 361(1) is complete and, therefore, there is no question of the President or the Governor being made answerable to the Court in respect of even charges of malafides.”
Thus, the actor cannot be held liable while in office, but his actions are open to judicial review. Similarly, in 2016 the Supreme in Nabam Rebia and Bamang Felix v. Deputy Speaker and Others, held that the Governor’s power to summon, dissolve and advance a session is within the scope of judicial review.
The Court held that the Governor enjoys immunity because he does not exercise executive function individually or personally but on the counsel of the chief minister and council of ministers.
These judgements looked into the immunity with regard to the executive functions or official functions discharged by the Governor.
However, in 2015 during the Vyapam scam, the then Governor of Madhya Pradesh, Ram Naresh Yadav was also named as a conspirator in the FIR. The question that arose was whether he was eligible for immunity under Article 361 (2). The State argued that the registration of an FIR did not imply the initiation of criminal proceedings in a court of law and the same was not barred by Article 361. The Jabalpur bench of the Madhya Pradesh high court rejected this contention and noted that the registration of the FIR was not done in a vacuum and the same is barred under Article 361(2) with respect to the Governor and President.
The Court noted that taking a contrary view would open an avenue to register malicious and vexatious FIR making out a case of commission of a cognizable offence against the Head of a State and thus render the immunity under Article 361 of the Constitution redundant and expendable.
Therefore, the high court held that the immunity under Article 361(2) and (3) is unqualified and absolute. However, the Court noted that the police were free to continue the investigation against the other accused and could also record the statement of the Governor in a manner befitting his office.
It noted that the recording of statements was not barred by Article 361. This decision was appealed before the Supreme Court and even notice was issued against the Governor. However, nothing further happened. With Ram Naresh Yadav dying in 2016, the matter also ended with him.
Article 361(2) came into prominence again in 2017 when the Supreme Court directed the Court of Sessions, Lucknow, to delay the framing of the charge against Kalyan Singh in the Babri Masjid demolition case as long as he served as the Governor of Rajasthan. The top court ordered the Sessions Court to frame charges and move against him as soon as he ceased to be Governor.
Past cases
Bose is not the first Governor to face allegations while holding office.
ND Tiwari was named in a sex scandal in 2009 and subsequently resigned as the Governor of Andhra Pradesh. In 2017, 80 staff members wrote to the President and Prime Minister seeking the removal of V. Shanmuganathan, the then Governor of Meghalaya and Arunachal Pradesh for compromising the dignity of Raj Bhavan. Shanmuganathan subsequently resigned as the Governor amid a public uproar with the Congress calling the allegations an issue of ‘constitutional propriety’.
Under the Constitution, the governor holds office during the pleasure of the President and thus, can be removed by the President upon the advice of the Centre. The Supreme Court in the B.P. Singhal case in 2010 noted that the Governor may be removed in rare and exceptional circumstances for valid and compelling reasons including behaviour unbecoming of a Governor.
While Article 361 bars the initiation of criminal proceedings, it does not prevent the aggrieved from exploring other remedies. The President on the advice of the Central Government is not barred from seeking a response to the allegations from the Governor. While it is difficult to predict the future course in the complaint against Bose, the same will become a thorn of contention in the ongoing elections.
Parijata Bharadwaj, a lawyer and researcher based in New Delhi, co-founded the Jagdalpur Legal Aid Group that offered legal services to adivasis in Chhattisgarh. The views expressed are personal.
The recent allegations of sexual assault against West Bengal Governor C.V. Ananda Bose have raised important questions regarding the immunity enjoyed by the Governor’s office under the Constitution of India.
The West Bengal police are presently investigating allegations of sexual harassment levelled against Bose by a contractual worker at the Raj Bhawan. Bose has challenged the investigation, saying it violates the Constitutional immunity enjoyed by governors and has instructed the Raj Bhawan to ignore any police communication.
Contours of the Constitutional immunity on the Governor’s office
Article 361 of the Constitution of India confers upon the President and the Governor’s office absolute personal immunity regarding acts done or purported to be done while exercising official powers and discharging duties. Thus, a governor cannot be personally held liable for giving assent to a bill or any other similar act.
However, it is clause 2 of Article 361, which is being debated. Clause 2 grants complete immunity to the President and Governor and states that no criminal proceedings whatsoever shall be instituted against them. The Courts have on different occasions analysed this provision.
An early case that looked into the scope of the Article was in 1952 when Justice Vivian Bose was called upon to adjudge the exercise of the power of the Governor to nominate members to the State legislature in Biman Chandra Bose v. Governor, West Bengal. The judge noted that regarding official acts or omissions, even those which were incidental, he enjoyed absolute immunity. However, regarding acts done in a personal capacity wherein civil proceedings may be instituted, there existed a partial bar requiring the party instituting the suit to issue a notice to the Governor and act after a period of two months.
This view was re-affirmed in M. Gnanamani v. His Excellency the Governor of Andhra in 1954. The Andhra Pradesh High Court noted that the Governor could not be questioned for official acts done in the exercise of the powers conferred on him, so long as he is not guilty of dishonesty or bad faith. The Court also noted that the aggrieved person was free to bring appropriate action against the government in question.
Court's interpretations
Different High Courts analysed the extent of the immunity enjoyed by the Governor. However, the landmark judgment with regard to the provision came in 2006 in the Rameshwar Prasad v. State of Bihar case.
In this case, the Supreme Court was reviewing the Governor's sudden imposition of the President’s rule in Bihar. On the issue of immunity, the Court ruled that while the Governor enjoys personal immunity from being held accountable, his actions are still open to challenge. On the personal immunity, the Court observed, “The personal immunity under Article 361(1) is complete and, therefore, there is no question of the President or the Governor being made answerable to the Court in respect of even charges of malafides.”
Thus, the actor cannot be held liable while in office, but his actions are open to judicial review. Similarly, in 2016 the Supreme in Nabam Rebia and Bamang Felix v. Deputy Speaker and Others, held that the Governor’s power to summon, dissolve and advance a session is within the scope of judicial review.
The Court held that the Governor enjoys immunity because he does not exercise executive function individually or personally but on the counsel of the chief minister and council of ministers.
These judgements looked into the immunity with regard to the executive functions or official functions discharged by the Governor.
However, in 2015 during the Vyapam scam, the then Governor of Madhya Pradesh, Ram Naresh Yadav was also named as a conspirator in the FIR. The question that arose was whether he was eligible for immunity under Article 361 (2). The State argued that the registration of an FIR did not imply the initiation of criminal proceedings in a court of law and the same was not barred by Article 361. The Jabalpur bench of the Madhya Pradesh high court rejected this contention and noted that the registration of the FIR was not done in a vacuum and the same is barred under Article 361(2) with respect to the Governor and President.
The Court noted that taking a contrary view would open an avenue to register malicious and vexatious FIR making out a case of commission of a cognizable offence against the Head of a State and thus render the immunity under Article 361 of the Constitution redundant and expendable.
Therefore, the high court held that the immunity under Article 361(2) and (3) is unqualified and absolute. However, the Court noted that the police were free to continue the investigation against the other accused and could also record the statement of the Governor in a manner befitting his office.
It noted that the recording of statements was not barred by Article 361. This decision was appealed before the Supreme Court and even notice was issued against the Governor. However, nothing further happened. With Ram Naresh Yadav dying in 2016, the matter also ended with him.
Article 361(2) came into prominence again in 2017 when the Supreme Court directed the Court of Sessions, Lucknow, to delay the framing of the charge against Kalyan Singh in the Babri Masjid demolition case as long as he served as the Governor of Rajasthan. The top court ordered the Sessions Court to frame charges and move against him as soon as he ceased to be Governor.
Past cases
Bose is not the first Governor to face allegations while holding office.
ND Tiwari was named in a sex scandal in 2009 and subsequently resigned as the Governor of Andhra Pradesh. In 2017, 80 staff members wrote to the President and Prime Minister seeking the removal of V. Shanmuganathan, the then Governor of Meghalaya and Arunachal Pradesh for compromising the dignity of Raj Bhavan. Shanmuganathan subsequently resigned as the Governor amid a public uproar with the Congress calling the allegations an issue of ‘constitutional propriety’.
Under the Constitution, the governor holds office during the pleasure of the President and thus, can be removed by the President upon the advice of the Centre. The Supreme Court in the B.P. Singhal case in 2010 noted that the Governor may be removed in rare and exceptional circumstances for valid and compelling reasons including behaviour unbecoming of a Governor.
While Article 361 bars the initiation of criminal proceedings, it does not prevent the aggrieved from exploring other remedies. The President on the advice of the Central Government is not barred from seeking a response to the allegations from the Governor. While it is difficult to predict the future course in the complaint against Bose, the same will become a thorn of contention in the ongoing elections.
Parijata Bharadwaj, a lawyer and researcher based in New Delhi, co-founded the Jagdalpur Legal Aid Group that offered legal services to adivasis in Chhattisgarh. The views expressed are personal.