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THE CONTEXT: The Supreme Court of India is grappling with a landmark case that challenges the constitutional immunity granted to Governors under Article 361, sparked by allegations of sexual harassment against the West Bengal Governor. This case raises critical questions about balancing constitutional protections and individual rights.
THE ISSUES:
- Scope and Extent of Immunity under Article 361(2): Article 361(2) of the Indian Constitution provides that no criminal proceedings can be instituted or continued against the President or a Governor during their term of office. The Supreme Court is examining whether this immunity is absolute or if it can be challenged in cases involving serious allegations such as sexual harassment.
- Impact on Fundamental Rights: The petitioner argues that the immunity granted under Article 361(2) infringes upon her fundamental rights, particularly her right to life and personal liberty under Article 21 of the Constitution. She contends that this immunity should not extend to acts that violate fundamental rights.
- Judicial Interpretation and Precedents: Previous judicial rulings have indicated that while Governors enjoy immunity under Article 361, this does not preclude judicial scrutiny of their actions, especially if they are alleged to be malafide (in bad faith). The Supreme Court’s interpretation of Article 361(2) will be crucial in determining whether similar principles apply to criminal immunity.
- Constitutional Morality and Fairness: The Supreme Court is assessing whether the blanket immunity undermines constitutional morality and fairness. The petitioner argues that the immunity is based on outdated notions such as “the King can do no wrong,” which are incompatible with modern democratic principles and the rule of law.
- Delay in Justice and Investigation: The petitioner expresses concern that the immunity clause delays criminal investigations and potentially denies justice. She fears that waiting for the Governor to demit office before initiating an inquiry could compromise the evidence and affect the trial’s fairness.
- Need for Guidelines and Clarification: The petitioner has urged the Supreme Court to frame guidelines that clearly define the extent of the immunity under Article 361(2). This includes determining when criminal proceedings can be instituted against a Governor and ensuring that the police can investigate complaints without being hindered by the immunity clause.
THE WAY FORWARD:
- Judicial Interpretation and Limitation of Immunity: The Supreme Court could interpret Article 361(2) to clarify that the immunity provided to the President and Governors does not extend to acts that violate fundamental rights, such as sexual harassment or other criminal acts. This interpretation would align with the principles of constitutional morality and ensure that immunity does not become a shield for impunity. The Supreme Court in Rameshwar Prasad vs. Union of India allowed judicial scrutiny of actions taken with malicious intent under Article 361(1). A similar approach could be applied to criminal immunity under Article 361(2).
- Legislative Amendment to Article 361: Parliament could amend Article 361 to exclude immunity for criminal acts violating fundamental rights. This would provide a clear legal framework and prevent the misuse of immunity provisions. Article 368 allows for the amendment of the Constitution, which could specify the limits of immunity granted to high constitutional offices. The Sarkaria Commission recommended reforms to ensure greater accountability of Governors, including revising immunity provisions to prevent misuse.
- Establishment of an Independent Inquiry Mechanism: An independent body or commission could investigate misconduct allegations against the President or Governors while in office. This body would ensure impartiality and prevent delays in justice. Similar mechanisms exist in other democracies, such as the United States, where former Presidents can be investigated for actions taken outside their official capacity.
- Guidelines for Police and Judicial Authorities: The Supreme Court could issue guidelines for police and judicial authorities to handle complaints against high constitutional authorities. These guidelines would ensure that investigations are not stalled due to immunity claims and that victims receive timely justice. The Madhya Pradesh High Court in Ram Naresh vs. State of Madhya Pradesh ruled that immunity should not impair police investigations, including recording statements.
- Public Awareness and Legal Education: Raising public awareness and providing legal education about the limits and scope of immunity under Article 361 can empower citizens and legal practitioners to challenge the misuse of immunity provisions. This can be achieved through legal reforms, public campaigns, and educational programs.
THE CONCLUSION:
As the Supreme Court deliberates on this pivotal issue, its decision could redefine the scope of gubernatorial immunity and set a precedent for balancing constitutional privileges with fundamental rights. The outcome of this case may have far-reaching implications for accountability in high offices across India.
UPSC PAST YEAR QUESTION:
Q. Discuss the essential conditions for exercising the legislative powers by the Governor. Discuss the legality of the re-promulgation of ordinances by the Governor without placing them before the Legislature. 2022
MAINS PRACTICE QUESTION:
Q. The Supreme Court’s examination of Article 361 of the Indian Constitution raises essential questions about the balance between constitutional immunity and accountability. Critically analyze the implications of granting “blanket” immunity to the President and Governors from criminal proceedings while in office.
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