The sex scandal that rocked the Raj Bhavan in Kolkata is now at the door of the India's highest court. The Supreme Court sought a response from the Union government and the state of West Bengal on a plea challenging constitutional immunity from legal proceedings claimed by West Bengal, Governor Shri C.V. Bose. The plea questions whether a governor can be granted absolute immunity even when facing the serious accusations such as sexual assault. This is the constitutional issue that the Supreme Court will need to address.

Roots of Governor Immunity

From a historical perspective, the concept of "immunity" can be traced back to our colonial past, which operated under the belief that the "king can do no wrong" based on the Latin maxim "rex non potest peccare". The Constituent Assembly extensively deliberated on the various provisions regarding the Governor. Shri H. V. Kamath, a member of the constituent assembly, cast his aspersions for the governor's immunity, especially Clause (2), which states that "no criminal proceedings whatsoever shall be instituted or continued against the President or the Governor or the Ruler of a State in any court during his term of office."

Shri H.V. Kamath doubted whether the governor or the ruler, has no liability for any criminal act committed by him during his "term of office" and if "unfortunately", the governor commits a criminal act, does this clause mean that no proceedings can be instituted against him during the whole prescribed term, or whether it means while he is in office only. Unfortunately, this article was adopted without any further debate on criminal immunity.

The Governor's Shield

Article 361 is an exception to Article 14 (RIGHT TO EQUALITY) of the constitution of India which provides that the President or the Governor is not answerable to any court for the exercise of the powers and duties of his office. Article 361 of the constitution of India deals with the "Protection of President and Governors and Rajpramukhs". Clause(2) of Article 361 states that "No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any court during his term of office".

In the case of "Rameshwar Prasad vs Union of India" 2006, the Supreme Court clarified that while the Governor is granted absolute immunity while in office under Article 361 of the Constitution, this does not mean that the Governor's actions cannot be examined by the Court if they are believed to be performed with malafide intentions and directly endanger the sanctity of the Constitution of India. In other words, the Court has the right to examine and check the constitutionality and legality of the Governor's actions if they are deemed to have been done with incorrect intentions.

Even though the Governor enjoys full immunity for his actions while in office, Article 361 will not protect him from scrutiny for acts believed to have been done with malafide intent. The Supreme Court has the power to examine the constitutionality of such acts of the Governor even while he is in office. In the case of "Shri Ram Naresh Yadav Vs. The State Of Madhya Pradesh" 2015, Supreme Court held that the Immunity and privilege provided to the governor is only during the term of office, At the same time immunity under Article 361 (2), (3) does not extend to the recording of statement of the head of a state by the police in connection with an investigation of a crime, if it is essential so.

While recording the statement, police must take all the precautions so that the majesty of the office of the governor of the state is not undermined in any manner. The Supreme Court of USA on July 1, 2024, ruled in a 6:3 decision in the recent judgement of Trump vs United States that former President Donald Trump is entitled to "absolute immunity" from criminal prosecution for official acts but not for unofficial or personal acts.

The Constitution of India states that the Governor will remain in office until the pleasure of the President is found. The duration of the President's pleasure has been extensively discussed in various commissions such as the Sarkaria Commission (1988), Venkatachaliah Commission (2002), and Punchhi Commission (2010), The question before the apex court is whether the governor should remain in his position after facing such grave accusations.

Suraksha Kavach or Double Edge Sword

The doctrine of basic structure is being challenged once again in the apex court. The immunity granted to the governor from criminal proceedings under Article 361(2) of the constitution cannot be used as a shield and cannot deter the administration from initiating a probe against the governor. The immunity provided by Article 361 should not be absolute, especially in cases involving heinous crimes and violation of fundamental rights.

In the case of "Sita Soren vs Union of India" 2024, Supreme Court, in a unanimous decision by a seven-judge bench, held that if a member of parliament takes money, he can be prosecuted and does not enjoy immunity under Articles 105(2) and 194(2) of the Constitution against bribery. Section 197 of the criminal procedure code categorically states that protection is extended to public servants who commit offences not in the line of duty; hence, there is no protection for offences not committed in the line of duty.

Similarly, the Supreme Court can strike down protection under article 361 or curtail some of them. However, the relationship between the governor and the state, especially in states where the opposition is in power, is very fragile as the governor exercises critical duties. The concern here is that if the Supreme Court removes his immunity, anyone can walk into a police station, lodge an FIR against the Governor, and start criminal proceedings against him, even if the FIR is fictitious. Nevertheless, nobody is above the law, and if someone is committing a crime, they must be answerable to the courts.

The Latin phrase "Uxorem Caesaris tam suspicione quam crimine carere oportet" (Caesar's wife should be free from suspicion as well as from accusation). The governor's post is a constitutional post, but the irony is that this time suspicion as well as an accusation has been cast.

Written By: Pranav Kr. Pandey, 2nd Year Student of BA.LL.B (Hons)