Chambers of Samyak Gangwal

Governor or King? - Analysing the immunity provision of the Constitution

(29.08.2024)

The debate over whether a sitting or former President or Governor should be immune from criminal prosecution has been a longstanding one. The recent U.S. Supreme Court ruling involving former President Donald Trump has reignited this discussion globally.[1] In India, we need not look to the West for examples; the Governor of West Bengal, C.V. Ananda Bose, has provided a stark instance by claiming immunity from prosecution for allegedly sexually harassing a female employee of the Raj Bhawan. Recently, the Supreme Court issued a notice on a petition filed by the aggrieved woman, seeking a directive for the State Police to investigate and to establish guidelines regarding the scope of immunity under Article 361.[2] The petition is likely to be heard on September 20th this year. It is well settled that the President or the Governor can be prosecuted for criminal offences after their term is over. The question is whether during the term of office an investigation can be initiated or continued against the President or the Governor. In this article, I aim to explore the questions that may arise before the Supreme Court while interpreting Article 361.

Governor CV Ananda Bose’s Constitutional defence

Governor Bose has publicly claimed immunity from investigation in response to allegations of sexual harassment. Unfortunately, this isn't the first time a sitting Governor in India has faced such accusations while holding high office. In 2017, Meghalaya Governor V. Shanmuganathan resigned after nearly 100 staff members accused him in a letter to Prime Minister Narendra Modi of "compromising the dignity" of the Governor's House by molesting a young woman who applied for a job at the Raj Bhavan.[3] It remains unclear whether any criminal proceedings were initiated against Shanmuganathan post-resignation, with his punishment seemingly limited to his forced resignation.

Unlike Governor Shanmuganathan, Governor Bose has chosen not to resign. Instead, he has invoked Article 361 to claim immunity from investigation. On May 5, 2024, he tweeted instructions to Raj Bhavan staff to "ignore any communication from the police" and to avoid making "any statement online, offline, in person, over the phone, or in any other manner”.[4] Governor Bose articulated his interpretation of the Constitution, stating that allowing police inquiries during his tenure, even without a court taking cognizance of a final report, would undermine the essence of Article 361. He asserted that this constitutional immunity bars the police from conducting any preliminary inquiry or registering a First Information Report (FIR) against him.

It appears that till date no FIR has been registered against Governor Bose. However, according to news reports, an FIR has been filed against three Raj Bhavan officials for allegedly restraining the woman who accused the Governor.[5] Additionally, a 'Zero FIR' has been registered against the Governor’s nephew for criminal conspiracy, related to providing logistical support by booking the room where the alleged offence occurred.[6]

Whether there is any precedence for the argument that a FIR cannot be registered against a sitting Governor or President?

In 1954, Article 361(2) was invoked by the Nizam of Hyderabad, Mir Osman Ali Khan, then Rajpramukh of the State. A man named B.G. Keskar filed an application before the District Magistrate, alleging that "not less than 300 adult women, 100 adult men, and an unknown number of minor boys and girls" were being detained as slaves by the Nizam in the Raj Bhavan. After some back and forth between the Commissioner of Police, the District Magistrate and the High Court, the District Magistrate finally passed an order directing investigation and holding no criminal proceedings were being instituted against the Raj Pramukh which according to him could only be said to be instituted if a person is summoned to stand trial or the Magistrate has made up his mind to act upon a charge-sheet against him and took some overt act to implement his decision.

This order was challenged by the Nizam before the High Court of Hyderabad in H.E.H. the Nizam Rajpramukh of Hyderabad v. The State.[7] Justice Jaganmohan Reddy, who later was elevated to the Supreme Court, delivered the judgment along with Justice Mohd Ahmed Ansari. In his analysis, Justice Reddy reviewed American and English law and relevant sections of Indian law, such as Sections 211 of the IPC, Section 29 of the Arms Act, and Sections 196, 196A, 197, and 197A of the CrPC. He opined that if the framers of the Constitution had intended to prevent even police investigations against a President, Governor, or Rajpramukh for serious cognizable offenses, they would not have specifically used the word “Court”. However, he noted that this question did not directly arise in the case, as Keskar’s application was technically a "complaint," which the Magistrate, acting as a “Court,” could not entertain due to the bar under Article 361(2).

Fast forward nearly 60 years to 2015, when an FIR was registered against the then-Governor of Madhya Pradesh, Ram Naresh Yadav, for his alleged involvement in the Vyapam Scam. A bench of the Madhya Pradesh High Court, comprising Justice A.M. Khanwilkar (now Chairman of Lokpal) and Justice Rohit Arya (who recently joined the BJP), quashed the FIR against Yadav in the case of Ram Naresh Yadav v. State of M.P. and Ors[8]. The court held categorically that even an FIR could not be registered against the President or a Governor. However, permission was granted to investigate and proceed against other accused individuals.

The High Court reasoned that the purpose of registering an FIR under Section 154 of the CrPC is to initiate the criminal process. Once an FIR is registered, the officer in charge is obligated under Section 157(1) to send a report to the Magistrate. Upon receiving this report, the Magistrate can direct an investigation or conduct a preliminary inquiry under Section 159. The court summarized its reasoning as follows:

“33 . … A priori, mere registration of FIR under Section 154 must be deemed to be criminal proceedings instituted before the Court (Magistrate). It must, therefore, attract Clause (2) of Article 361 of the Constitution, being "criminal proceedings whatsoever" instituted in the Court. Inasmuch as, consequent to forwarding of FIR to the Court it is effectively laid before the Magistrate and resultantly deemed to be instituted in the Court. Viewed thus, in law, the police is prohibited even from registration of FIR in respect of cognizable offence against the Head of a State - as envisaged in Article 361(2) of our Constitution.”

Analysing the reasoning of Governor Bose and the Madhya Pradesh HC in Ram Naresh Yadav

The reasoning presented by Governor Bose and the Madhya Pradesh High Court in the Ram Naresh Yadav case, while initially compelling, does not hold up under closer examination for several reasons.

Firstly, the logic in Ram Naresh Yadav overlooks the fact that many statutes initiate ‘criminal proceedings’ without the need for an FIR. In certain special laws, such as the NDPS Act (Narcotic Drugs and Psychotropic Substances Act) and the PMLA (Prevention of Money Laundering Act), there is no requirement to register an FIR, nor is there a mandate to send such a report to a Magistrate. Under the NDPS Act, empowered officers—who are not necessarily police officers—record ‘information’ that serves as the basis for actions like search, seizure, and arrest.[9] This information is sent to a superior officer rather than a Magistrate. Similarly, the Enforcement Directorate under the PMLA records an ECIR (Enforcement Case Information Report), which, again, is not submitted to a Magistrate.

If we accept the reasoning in Ram Naresh Yadav, investigations under these special statutes would not qualify as ‘criminal proceedings’ initiated before a ‘court.’ This would create an absurd legal situation where the President or a Governor could be investigated for offenses under the NDPS Act or PMLA—since these do not involve the registration of an FIR—but would be shielded from investigation for offenses where an FIR is required. This inconsistency undermines the soundness of the reasoning in Ram Naresh Yadav and highlights the need for a more nuanced interpretation of Article 361(2).

Secondly, there are several statutes that provide legal protection to public officials performing their official functions, using language similar to that in Article 361. For instance, the Armed Forces (Special Powers) Act, 1958, and the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, include the following provisions:-

Armed Forces (Special Powers) Act, 1958

6. Protection to persons acting under Act – No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.

Armed Forces (Jammu and Kashmir) Special Powers Act, 1990

7. Protection of persons acting in good faith under this Act.—No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.

In General Officer Commanding v. CBI (2016) 6 SCC 228, the Supreme Court interpreted these provisions as follows:

“41. … So far as the criminal proceedings are concerned, “Institution” does not mean filing; presenting or initiating the proceedings, rather it means taking cognizance as per the provisions contained in the Cr.P.C.”

Thus, the Supreme Court held that such provisions prohibit the court from taking cognizance, not from filing a chargesheet. In the context of Article 361(2), Justice Reddy in H.E.H. the Nizam Rajpramukh of Hyderabad v. The State opined that the use of the expression ‘no criminal proceedings whatsoever’ may mean that even a chargesheet cannot be filed, however, it does not bar the initiation of investigations as the same is not before any ‘Court’.

Several other fallacies arise from the arguments advanced by Governor Bose and the reasoning adopted in Ram Naresh Yadav, particularly from the perspective of criminal law. However, these need not be discussed in detail, as the interpretation of Article 361(2) must fundamentally be based on the overall scheme of the Constitution.

Article 361 – the text, scheme and some thoughts

Article 361 – ‘Protection of President and Governors and Rajpramukhs’ is placed in Part XIX (Miscellaneous) provides various protections to the President and Governors through its four sub-articles, each addressing different aspects of immunity.

Sub-articles (1) and (4)

The interpretation of sub-article (1) was a subject matter of consideration before a Constitution Bench of the Supreme Court in Rameshwar Prasad and Ors (VI) v. UOI[10]. To state the facts briefly, a challenge was laid to the constitutional validity of a notification dissolving the Legislative Assembly of Bihar, even before the first meeting of the Legislative Assembly. The said notification was passed by the President relying upon a report of the Governor, wherein it was stated that the political parties are indulging in illegal means to cobble up a majority. The Supreme Court was considering whether notice can be issued to the Governor to answer the allegations that the report was prepared mala fidely. In this context the Supreme Court interpreted Article 361 and held that “there is a complete bar to the impleading and issue of notice to the President or the Governor inasmuch as they are not answerable to any Court for the exercise and performance of their powers and duties.”.

While the Supreme Court’s conclusion was correct, it did not establish a test to determine if the actions of the President or Governor were indeed in the exercise and performance of their powers and duties, purported or otherwise. Only actions taken in the genuine exercise and performance of their official powers and duties are protected. Certainly, acts such as sexual harassment or keeping slaves are not part of the Governor’s powers and duties, and thus, do not receive protection under Article 361(1).

Interestingly, sub-article (1) provides absolute protection to the President and Governor for official acts. In contrast, sub-articles (2) to (4) offer limited protection only during their ‘term of office’. This suggests that the framers of the Constitution intended to grant absolute protection for official acts or those purported to be done in an official capacity, while providing limited protection for other acts.

The first proviso to sub-article (1) provides that the conduct of the President may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under Article 61. Article 61 provides for the procedure for impeachment of the President. It is important to note that the framers of the Constitution contemplated an investigation against the President even for acts done in official capacity, subject the procedure being followed under Article 61 for impeachment. The President thus is answerable for official acts to the people through the Legislature. The second proviso to sub-article (1) makes it clear that nothing in Article 361 shall prevent an action being brought against the Government of India or the Government of a State. Thus, it is the Government of India or the Government of a State that is required to defend the official actions taken by the President or the Governor, as the case maybe. 

It is evident that even in respect of acts done in official capacity, the Constitution does not support the doctrine that “the King can do no wrong”, which is the basis for granting immunity to heads of State.

Sub-article (4) of Article 361 provides limited protection to the President and the Governor against civil proceedings. It stipulates that no civil proceedings in which relief is sought against the President or a Governor for acts done in their personal capacity can be initiated during their term of office unless a two-month notice is provided. This notice must detail the nature of the proceedings, the cause of action, the identity and residence of the party bringing the suit, and the relief sought. This process ensures that while the President or Governor is granted a certain level of procedural protection during their term, they are not entirely immune from accountability for personal actions.

The protection offered by sub-article (4) is, therefore, narrow in scope. It does not shield the President or the Governor from civil proceedings that were initiated before they assumed office. Additionally, for acts done in a personal capacity, anyone wishing to bring a civil action against them during their term must simply adhere to the procedural requirement of giving a two-month notice. For instance, if B.G. Keskar were to bring a civil action against the Nizam of Hyderabad or if the aggrieved women were to bring a civil action against Governor Bose, they would only need to provide the requisite notice before proceeding with their lawsuit.

Sub-articles (2) and (3)

Article 361(2) of the Indian Constitution provides that no criminal proceedings shall be initiated or continued against the President or the Governor of a State in any court during their term of office. Similarly, Article 361(4) prohibits the issuance of any process for arrest or imprisonment against them by any court during their tenure. A commonality among sub-articles (1), (2), (3), and (4) of Article 361 is that they all offer protection from actions initiated before or emanating from any ‘court.’ As noted by Justice Jaganmohan Reddy, if the framers of the Constitution had intended to shield the President or the Governor from police investigation, they would not have specifically used the word ‘court’.

The interpretation suggested by Governor Bose and the Madhya Pradesh High Court in the Ram Naresh Yadav case, which would effectively prevent any investigation of a sitting President or Governor, raises serious concerns. If this interpretation were accepted, it would lead to alarming consequences. For instance, if a President or Governor committed an offense at the beginning of their term, the police would be barred from investigating for the entirety of their five-year tenure. By the time the term ends, crucial evidence might be lost or degraded, making a post-term investigation potentially futile.

The framers of the Constitution clearly intended that the President or Governor would be answerable to criminal courts after their term in office. This implies that they did not intend to block the collection of evidence during their tenure. A prohibition on investigations would contradict this intention, as the Constitution assumes the President or Governor may face legal scrutiny after their term ends.

Consider a scenario where a complaint is made without naming the President or Governor as the accused, or where the identity of the accused is unknown to the police. The police would naturally proceed with the investigation, and if evidence emerged implicating the Governor, the question arises: Should the police stop the investigation upon realizing the Governor's involvement? The Constitution does not appear to require the police to disregard evidence simply because it implicates the Governor.

Moreover, if multiple individuals, including the Governor, are named in a complaint, does the Constitution mandate that no investigation can proceed simply because one of the accused is the Governor? Even in the Ram Naresh Yadav case, the Madhya Pradesh High Court allowed investigations against other accused persons. However, if evidence implicates the Governor during such an investigation, should the police discard it and only collect evidence against others? This would result in an absurd and unjust outcome.

If the Supreme Court were to endorse Governor Bose's interpretation that no investigation can occur against a sitting Governor, it would need to consider the bizarre and unintended consequences that would follow.

Some possible concerns

Before the Supreme Court, an argument might be raised that a criminal investigation against the President or the Governor could hamper the functioning of the executive. However, this concern is largely unfounded for several reasons.

Firstly, a criminal investigation against such the head of executive is highly unlikely to occur in the first place. Even if such an investigation were to take place, its impact on the functioning of the executive would be minimal. The President and the Governor, like any other citizen, have constitutional rights, including the right to life and the right against self-incrimination. Additionally, Article 361(3) of the Constitution protects them from arrest or imprisonment during their term of office, eliminating the possibility of custodial interrogation by the police. It is difficult to conceive of a situation where a police investigation, which does not include the power of arrest or custodial interrogation, would so severely disrupt the executive's functioning that the investigation itself must be prohibited.

The framers of the Constitution clearly considered that the executive's functioning would not be hindered by a civil trial against the President or Governor for personal actions, as indicated by the inclusion of Article 361(4). It is therefore hard to believe that a criminal investigation—an even less likely event—would pose a significant threat to the functioning of the executive.

Another argument that might be presented is that the President is accountable to the legislature under Article 61 (impeachment), and the Governor is accountable to the President under Article 156(1) (holding office at the pleasure of the President), suggesting that police investigations are unnecessary or even constitutionally prohibited. This argument is flawed. If there is an allegation of a criminal offense against the Governor, the absence of a police investigation would leave the President with no factual basis upon which to act. Expecting the President to take action based on mere allegations, without any evidence, would be arbitrary and inconsistent with the principles of justice. Similarly, in the case of impeachment proceedings against the President for alleged criminal offenses, the absence of a police investigation would make it impossible for either house of Parliament to prefer a charge under Article 61(2) due to the lack of evidence. Article 61(3) permits investigation only by the "other house" after a charge has been preferred by a two-thirds majority in one house under Article 61(2). The framers of the Constitution could not have intended for such a serious charge to be brought without any supporting evidence.

Thus, a police investigation is essential to ensure that either house of Parliament, before preferring a charge against the President under Article 61(2), or the President, before removing a Governor under Article 156(1), acts based on evidence collected during an investigation rather than on arbitrary whims or baseless allegations. This ensures that any action taken against the President or Governor is grounded in fact and law, thereby upholding the integrity of the Constitution and the justice system.

Conclusion

Our Constitution has rejected the idea of a ‘king’. It has rejected the theory that the “King can do no wrong”. Time and again the Supreme Court has reminded us of the words of Thomas Fuller first used almost 300 years ago - ‘be you ever so high, the law is above you.’. Perhaps, it is time that the Governors in our Country are reminded of these words.

Ultimately, the Supreme Court must interpret Article 361 in a manner which is in consonance with our Constitutional ethos. The Supreme Court’s interpretation should reinforce the notion that while the President and Governors enjoy certain immunities to ensure the stability of their offices, these immunities do not extend to acts of criminal misconduct, which can only be unearthed upon an investigation.

[1] https://supreme.justia.com/cases/federal/us/603/23-939/

[2] W.P.(Crl) No. 295 of 2024 before the Supreme Court of India

[3] https://www.ndtv.com/india-news/meghalaya-governor-v-shanmuganathan-resigns-after-ladies-club-controversy-1653124

[4] https://x.com/BengalGovernor/status/1787035597728514417

[5] https://indianexpress.com/article/cities/kolkata/3-raj-bhavan-staff-booked-stopped-woman-from-complaining-cops-9336309/

[6]https://www.telegraphindia.com/west-bengal/zero-fir-registered-against-governor-c-v-ananda-boses-nephew-for-sexual-harassment/cid/2027543

[7] AIR 1955 Hyd 241

[8] MANU/MP/0444/2015

[9] Section 42 of the NDPS Act

[10] (2006) 2 SCC 1