"The Scope and Limits of Executive Immunity: A Critical Study of Article 361 of the Indian Constitution"

Author- Akshat Dwivedi

ABSTRACT

Article 361[1]of the Indian Constitution grants immunity to the President and Governors from judicial proceedings during their term, shielding official acts while balancing separation of powers. However, whether this immunity is “absolute” has become a contemporarily relevant constitutional question. This research article aims to trace the provision's historical evolution, legislative intentand judicial interpretations in landmark cases to analyse the scope and extent of this executive immunity in the context of separation of powers. It further aims to examine whether the judiciary can compel or mandate the executive heads to state reasons or display accountability for their actions.Conclusively it offers a perspective over this constitutional dreadlock in lieu of the growing criticism of this executive immunity.

INTRODUCTION

“No man is above the law and no man is below it: nor do we ask any man's permission when we ask him to obey it.”, remarked Theodore Roosevelt, the 26^th President of the United States of America, in his Third Annual Message to Congress[2]. However, in any legal system, there are individuals, who are often kept beyond the purview of the law or the judiciary in order to provide a degree of protection to them. In the Indian Constitution, it is the executive heads, namely the President of the nation and the governor of the states and Lieutenantgovernors of the union territories who are bestowed upon this privilege by virtue of Article 361[3] (hereinafter referred to as the “immunity article”.

This recalibration of the immunity article’s scope by eminent jurists and legal scholars,arises in light of 2 different matters.Firstly,with regards to the allegations of sexual harassment that have been levelled against the Governor of West Bengal, and the dispute between the Tamil Nadu state government and its governor(State of Tamil Nadu v The Governor of Tamil Nadu and ANR.)[4] which dealt with the powers of assent under Art 200[5] to the governor.These cases have reignited the constitutional conundrum over the scope and nature of executive immunity.

Historical Context and Legislative Intent

“Rex non potestpeccare” which translates to “the king can do no wrong”,wastheLatin maxim which gave rise to the doctrine of sovereign immunity. It protected the sovereign and its branches from facing legal repercussions without its consent. The same positivist approach was employed in India before being eventually rejected as being redundant,as in a welfare state citizens’ fundamental rights are paramount. Following a trajectory of striking a balance betweensovereign’s powers with citizen’s inalienable rights, a protective article was established.

The immunity article (formerly Art. 302 of the Draft Constitution) of the constitution, had a very clear, legislative intent which was primarily to protect the dignity, independence, and constitutional authority of the highest constitutional offices, ensuring that they could discharge their constitutional duties without undue interference, pressure, or the threat of litigation. During the constituent assembly debates and deliberations, one particular member, Mr. HV Kamath questioned the ambiguity of the text by probing whether such immunity would imply that no proceedings could be instituted against theseexecutive heads during their term or only while they were in office, as it could offer multiple varied interpretations[6]. Additionally, it could also be implied, that in such a situation where a criminal case is instituted against the governor, the President ought to remove him from office.  However, without further debate, this article was finalised and adopted as is. While the core text of the article has not been amended, its interpretation has substantially evolved over the years through various rulings. It must be highlighted thatthe framers established the aforementioned article as a shield for governance, and not unjustified privilege.

The President, Governors and LGs are titular/symbolic representatives of the Union and the States, respectively. They act as the constitutional heads, and their actions are generally on the advice of the Council of Ministers. The framers intended to protect the institutional dignity of these offices by shielding them from personal litigation or coercive processes during their term.This was further clarified in the case of S.R. Bommai and Ors. vs. Union of India[7], as such actions are not solely on the discretion of these executive heads alone.In the absence of such constitutional immunity there could be a real risk of frivolous or politically motivated lawsuits, hampering their ability to function effectively.

Therefore, no court can compel the head of the state to exercise any power or perform any duty or desist from doing so. The protection is wide. It not only covers official acts and omissions but shields acts done outside the constitution (in the way that no criminal proceeding can be instituted or continued against the President, or the Governor or Rajpramukh of a State, in any court during his term of office). Thus, the immunity article, is complete bar to the impleading and the issue of notice to the President or the Governor.

Key Judicial Rulings highlighting executive immunity

It is at this juncture, key observations and clarifications from the case of Rameshwar Prasad v. Union of India (2006)[8](hereinafter referred to as the Rameshwar Prasad case)must be reproduced. The case at hand dealt with the dissolution of Bihar Legislative Assembly and outlined the scope of this immunity. The governor recommended thesaid dissolution to the President on the grounds of a fractured verdict, citing various politically charged reasons. Even though it was reaffirmed that these executive heads are not answerable to any court for the exercise or the performance of their powers and duties, since most of the actions are taken on the aid and advice of council of ministers , it does not preclude or prohibit the courts in any manner from looking into the actions of the Governor which by necessary implication would include his actions under Article 200 as well. The Supreme court further observed: “The bar is only against the power of the court to issue notice or making the President or the Governor answerable. In view of the bar, the court cannot issue direction to the President or the Governor for even filing of affidavit to assist the court. 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 mala fides”.

The erudite Justice Bose in Biman Chandra Bose v. H.C Mukherjee[9], where he had to consider the scope of Art. 361 in a writ petition, at page 801 after citing the provisions of the immunity article, remarked regarding itswording, as being wide enough to bar any interference by the Court in respect of the official acts or omissions of the Governor. He additionally contended that the framers of the Constitution have taken the precaution of using additional words in the Article "any act done or purporting to be done by him" with a view to extend the protection even in respect of acts or omissions which can be said to be incidental to the exercise of the power and performance of the duties of the office of the Governor. It is true, that this immunity, as interpreted through the wording of the act, extends in its scope to the extent that the constitutional boundaries are not transgressed, it does not make these executive heads as super constitutional figures, but even then, no reason can be mandated from them during their terms of office.

In the case of State (Tr)Central Bureau of Investigation v. Shri Kalyan Singh[10], The Supreme Court upheld the immunity of Kalyan Singh as Governor of Rajasthan in the Babri Masjid demolition case. It ruled that criminal proceedings would resume once he ceased to be Governor

Taking precedence from the Rameshwar Prasadcase, the Supreme court recalled the notice issued to the governor of the state in the case of Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly[11], and further clarified that Governors enjoy complete immunity under the immunity article, barring any legal notice or proceedings against them for actions undertaken as part of their official duties.Subsequently, relying on both of these decisions, the court, in the case of S. Nalini v. Governor of Tamil Nadu[12] held that the immunity article insulates the governor of the state from being questioned or make him answerable before any court with respect to discharge of his official duties.

However, these wide-ranging powers raise important questions, one of them being, whether these powers are absolute or not. Constitutionally, the latter part of the concerned article also states that the president is liable to be impeached, and the Governors may be dismissed by the president-for any unconstitutional act done in exercise of their official powers, but it is clear with regards to the judiciary, the courts are not at liberty to compel these executive heads to be accountable, nor can they compel them to perform or forbear to perform any duty .

Can executive heads be compelled to provide reasons?

The constitution is clear, in its separation of powers, delineating the boundaries between the 3 organs of the state, namely the Executive, Legislature and Judiciary. This vertical division of powers is called the theory of separation of powers. The theory of separation of powers is attributed to Montesquieu, who contended that if functions of making and enforcing laws are to be concentrated in one person or group, genuine freedom cannot exist[13].Additionally, he remarked there can exist no liberty if legislative and executive power is not separated from judicial power, and if such exposition were to be done it would open the gates to arbitrary control and judges may behave like legislators.In India, through the cases of Kesavananda Bharati vs. State of Kerala & Another[14], and later in Indira Gandhi vs. Raj Narain[15], the Supreme Court declared Separation of Powers to be a part of the Basic Structure of the Constitution.The Supreme Court, through multiple cases like Ram Jawaya v. State of Punjab[16]has emphasized that the Constitution does not permit one organ of the State to encroach upon or usurp functions that are fundamentally assigned to another. Therefore, despite some overlap in functions incidental to checks and balances, the essential roles of each organ remain distinct and protected from interference by others. Although these powers interact and interflow and are not bound watertight compartments, the boundaries and the procedure established by law still needs to be upheld. One such boundary is enshrined under the immunity article.

In India,Article 61[17], outlines the impeachment process for the President for violation of the Indian constitution, while article 67 (b)[18]allows the Rajya Sabha to pass a resolution for removing the Vice President by an effective majority. The immunity article, itself provides that the President’s actions or conduct can be brought under scrutiny by any tribunal, court or body appointed by the parliament for the pursuance of such investigation. Therefore, it is abundantly clear that the framers of the constitution have not put executive heads under an impregnable constitutional fortress, they can be subjected to scrutiny, but it is the legislature which gets the primary authority to do so. The hon’ble Supreme Court has also clarified that the role of the Judiciary is confined to the interpretation and enforcement of existing laws. Judges are empowered to apply and uphold the law as enacted by the Legislature, but they are not vested with the authority to legislate. Judicial creation of law amounts to overstepping the constitutional boundaries of judicial power, thereby violating the doctrine of separation of powers.

In lieu of this, it is a growing notion among legal scholars that contemporaneously, the doctrine of separation of powers is not being followed, that judges are indeed, behaving like legislators, which has led to the Supreme court to make several clarifications.In the case of Divisional Manager, Aravali Golf Club and Ors. Vs. Chander Hass and Ors[19], the court, before making other important observations opined“We are compelled to make these observations because we are repeatedly coming across cases where Judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism Judges cannot cross their limits and try to take over functions which belong to another organ of the State”.The court delineating boundaries and placing reliance on past cases observed, “Judges must exercise judicial restraint and must not encroach into the executive or legislative domain”.

The hon’ble court has clarified that the role of the Judiciary is confined to the interpretation and enforcement of existing laws. Judges are empowered to apply and uphold the law as enacted by the Legislature, but they are not vested with the authority to legislate. Judicial creation of law amounts to overstepping the constitutional boundaries of judicial power, thereby violating the doctrine of separation of powers. Compelling these executive heads to disclose reasons, when the constitution itself does not impose such an obligation, would be an encroachment of the powers guaranteed to the executive under the constitution. The functions and scope of each branch of the state have been divided cautiously based on the doctrine of separation of powers

The Paradox of Accountability: Balancing Immunity with Constitutional Morality

 The "absolute" nature of the personal immunity described in Article 361(1) creates a distinct legal paradox, while the individual holding the office is beyond the reach of the court's reach, their actions are not. This distinction is imperativein maintaining the rule of law. If the actions of a Governor or President were entirely shielded from judicial review, it would create a constitutional vacuum, where the executive could act with total immunity, provided they remained in office. To resolve this, the judiciary has developed a nuanced approach. While the Governor cannot be impleaded as a party to a lawsuit, the Government (the Union or the State) can be. This allows the court to examine the constitutionality of an executive decision without requiring the titular head to personally justify it in the witness box. This mechanism honours the dignity of the high office while ensuring that the "aid and advice" of the Council of Ministerswhich usually drives these executive actionsremains subject to judicial scrutiny. However, a modern challenge has emerged regarding non-action, leading to pending bills. In recent years, several state governments have approached the Supreme Court because Governors have allegedly sat on bills indefinitely without granting or withholding assent. In such cases, the immunity under Article 361 is often used as a shield to avoid providing reasons for the delay. The Supreme Court has recently signalled that "immunity" does not mean such inaction is beyond the law. By invoking the principle of constitutional morality, the court suggests that high officials are expected to act within a reasonable timeframe to ensure the democratic process is not stalled. This brings us to the crux of the debateif a Governor’s silence can effectively veto a democratically elected legislature’s will, does Article 361 protect the "dignity of the office" or does it facilitate constitutional obstruction? While the judiciary remains hesitant to issue a direct mandamus to a Governor, it is increasingly using its power of "declaration of law" to remind executive heads of their constitutional obligations. The limit of immunity is reached when the protection of the person begins to erode the protection of the Constitution itself. Thus, the immunity is a shield for the office, but it cannot be a shroud for the law.

Conclusion

“Be you ever so high, the law is above you” is a statement that perfectly captures the spirit of rule of law that Indian democracy stands on, however the scope of the executive immunity provided in the Indian constitution, in light of recent events, is being heavily criticized by jurists, scholars and politicians. It is their contention, that this veil,which can only be lifted by the authority of the legislature, primarily,is arbitrary. This notion is being argued because, lately, certain executive heads are using these powers to the detriment of certain political parties. Governors of different states, all over India are being criticized for highly dictatorial and arbitrary interreference in the states’ administrative and other functions, to which even the judiciary cannot provide much relief.  The key concern here, lies in the fact that judiciary has its hands tied,and if the legislature doesn’t wish for it, it will not come into effect. Critics have argued that this is the legislature’s inefficiency and malpractice that such executive immunity is misused so proactively.Conclusively, some are of the opinion that it may be time to revisit this immunity and perhaps make substantive changes. However, authority, to put such change into action, ultimately also lies with the legislature.

[1]The Constitution of India, art. 361.

[2] Theodore Roosevelt, Third Annual Message (Dec. 7, 1903), The American Presidency Project,

https://www.presidency.ucsb.edu/documents/third-annual-message-16

[3]The Constitution of India, art. 361.

[4]State of Tamil Nadu v. The Governor of Tamil Nadu and Anr., AIR [Year] SC [Page]/([Year]) [Volume] SCC

[5]The Constitution of India, art. 200.

[6]Harsh, Article 361: Presidential Immunity in India: Can the President Do Wrong?, TSCLD, https://www.tscld.com/article-361-presidential-immunity-india-analysis 

[7]S. R. Bommai and Ors. v. Union of India, AIR 1994 SC 1918; (1994) 3 SCC 1.

[8]Rameshwar Prasad v. Union of India, AIR 2006 SC 980; (2006) 2 SCC 1.

[9]State (Tr.) Central Bureau of Investigation v. Shri Kalyan Singh, (2015) 16 SCC 374.

[10]State (Tr.) Central Bureau of Investigation v. Shri Kalyan Singh, (2015) 16 SCC 374.

[11]Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, AIR 2016 SC 3366; (2016) 8 SCC 1.

[12]S. Nalini v. Governor of Tamil Nadu, (1999) 5 SCC 255.

[13]Montesquieu, The Spirit of Laws, Book XI, Chapter 6 (1748).

[14]Kesavananda Bharati v. State of Kerala & Another, AIR 1973 SC 1461; (1973) 4 SCC 225.

[15]Indira Gandhi v. Raj Narain, AIR 1975 SC 2299; (1975) Supp SCC 1.

[16]Ram Jawaya v. State of Punjab, AIR 1955 SC 549.

[17]The Constitution of India, art. 61.

[18]The Constitution of India, art. 67(b).

[19]Divisional Manager, Aravali Golf Club and Ors. v. Chander Hass and Ors., (2008) 1 SCC 683

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