Presidential Immunity in India: Can the President Do Wrong?

Authored by Harsh, a regulation scholar at Hidayatullah Nationwide Legislation College, Raipur

Article 361 of the Indian Structure supplies that the President of the Union of India, together with the Governors of all States, shall have immunity from all types of prison proceedings and arrest till the tip of their time period of workplace. This type of blanket immunity is just not obtainable within the case of civil circumstances. This dialogue has come to mild just lately within the context of allegations of sexual harassment levelled by an worker of the Raj Bhavan in opposition to the present Governor of West Bengal, Dr. CV Ananda Bose. The alleged sufferer has moved to the Supreme Court docket after an “in-house judicial continuing” by the Raj Bhavan acquitted him of all prices.

Though the idea of immunity traces its origins to Victorian occasions, with the Latin maxim “The King Can Do No Incorrect” being included in Part 306(1) of the Authorities of India Act, the Indian judiciary has lengthy deviated from it, not less than in spirit.  Within the circumstances of Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India and in N. Nagendra Rao and Co. v. State of A.P., the courts have moved away from reliance on this absolutist method and held that the sociological foundation for this type of immunity has come full circle within the context of Welfare State and that the “emphasis now could be extra on liberty, equality and the rule of regulation.”

Clause 1 of Article 361 supplies immunity for official acts accomplished by the President and Governors, whereas Clauses 2 and three present immunity from the establishment of prison proceedings and technique of arrest “in any case by any means,” thereby additionally together with private acts. What’s shocking is that there is no such thing as a constitutional restrict placed on these private acts.  It have to be famous that the drafters of the Structure have used the phrases “accomplished or presupposed to be accomplished” in Article 361. This suggests that the immunity beneath Clause 1 extends to not solely the acts and omissions accomplished but in addition these that are incidental or ancillary to it, thereby widening the scope of immunity. Many judgments have held that the reasoning behind this blanket immunity comes from the truth that the actions of the President/Governors are topic to the help and recommendation of the Council of Ministers. Nonetheless, it stays unclear if this immunity would nonetheless be absolute within the context of powers exercised by the President and Governor, which aren’t topic to such ‘support and recommendation’. The judiciary wants to offer a clarification on the extent of such immunity. 

The Constituent Meeting Debate on Article 361, which was Article 302 within the draft Structure, appears to have ignored some key considerations. For instance, Hari Vishnu Kamath had raised an necessary query as to the interpretation of the phrases “time period of workplace”, which was ignored by the Meeting. He stated that this time period is ambiguous because it leaves room for a number of interpretations; it could imply that no prison proceedings be instituted in opposition to the President and Governors for both the total prescribed 5 years offered by Articles 56 and 156, respectively or solely till the time that he/she is in workplace. 

Curiously, there’s a division of opinion throughout the judiciary as as to if the all-encompassing immunity offered beneath Article 361(2) extends to Contempt of Court docket. A plain studying would supply that it does, nevertheless it has been held within the case of Madhav Rao Jivaji Scindia v. UOI, that contempt of court docket is neither of a civil or prison nature and Article 361(2) makes use of the phrases “prison proceedings”.

Whereas there could also be substance within the argument that that the President and the Governors shall have immunity for official acts as they’re accomplished within the context of the chief powers of the Union/State being vested in them by Articles 53 and 154 respectively and since they act on the recommendation of the Council of Ministers beneath Articles 74 and 163, blanket immunity even for private prison acts could be in opposition to the ideas of Pure Justice on the very least. Whereas Article 361(1) rightly supplies immunity for official acts, the issue lies with Article 361(2), which provides a blanket immunity to the President and Governors for even private acts within the context of prison circumstances. It has been held within the Neelabati Behera case that absolute immunity of the State exists solely within the context of sovereign features of the federal government and never all features of the federal government. Sovereign features of a state are these features for which the state is just not legally accountable. These features primarily relate to the defence, safety, and upkeep of peace.

The US Supreme Court docket had given the ‘Outer Perimeter Check’ within the case of Richard Nixon v. Ernest Fitzgerald, which differentiates between Official Acts and Private Acts. For instance, allow us to think about that the Indian President and the US President homicide an individual. In India, no prison proceedings will start in opposition to him/her due to Article 361(2) of the Structure. Nonetheless, prison proceedings could be initiated in opposition to the US President as this act comes outdoors the ‘perimeter of his direct or ancillary official acts’. One could argue that even in India, the proceedings can begin after the individual ceases to be the President/Governor however then what concerning the Proper to Speedy Trial which has been established as basic proper beneath Article 21 within the case of Hussainara Khatoon v. State of Bihar of the sufferer of such a prison act? It has additionally been held in Clinton v. James and the just lately determined case of Trump v. US that unofficial acts of the President don’t have any sort of immunity, whether or not for civil or prison circumstances. 

Whereas the dialogue concerning prison legal responsibility of the President for Official Acts is totally absent in India, it’s fuelling nationwide debates in the USA after the dissenting minority opinion of Justices Sotomayor, Jackson and Kagan in US v. Trump. They opined {that a} blanket immunity for official acts will place the President above the regulation, as he wouldn’t be liable even for confirmed corruption and different unlawful actions, solely as a result of it’s accomplished throughout the course of official responsibility. Justice Sotomayor additionally criticises taking a look at immunity for civil and prison offences by way of the identical lens, as the general public stake within the latter circumstances is far increased. She additionally says that the case has in impact blurred the strains between official and unofficial acts, it defines the latter as “manifestly or palpably past [the president’s] authority”.

Whereas DD Basu’s commentary on the Structure of India does point out a listing of offences which were thought-about by the courts as outdoors the scope of “accomplished or presupposed to be accomplished” in official capability for instance, ‘misapplication of public cash entrusted to his care’  within the case of Meads v King-Emperor, this doesn’t translate to non-application of absolute immunity. It’s because if any of the acts accomplished by the President/Governor talked about within the checklist are presupposed to be accomplished in consonance with the structure, nothing else is to be thought-about. In truth, the immunity will lengthen even when the act is malafide or in opposition to the structure.

The precept of presidential immunity beneath Article 361 of the Indian Structure has lengthy been a topic of debate and scrutiny, particularly in mild of evolving societal expectations and authorized interpretations. Whereas it’s clear that the immunity granted to the President and Governors serves to guard their official actions, the absence of a transparent limitation on private acts, significantly in prison issues, raises critical considerations about accountability. The blanket immunity offered beneath Article 361(2) might be seen as an outdated notion within the context of up to date ideas of pure justice, equality, and the rule of regulation.

Though the immunity is grounded within the thought of safeguarding government features, it seems to stretch past its authentic intent when it extends to non-public actions that fall outdoors the scope of official duties. This not solely creates an unbalanced system the place sure people are shielded from authorized penalties, but in addition undermines the elemental proper to justice, significantly for victims of prison acts dedicated by these in excessive workplace.

Worldwide comparisons, such because the method taken by the U.S. in circumstances like Clinton v. James and Trump v. US, additional counsel that the road between official and private acts have to be clearly outlined to make sure that nobody, no matter place, stays above the regulation. The Indian judiciary, whereas having advanced over time, should proceed to deal with the anomaly within the interpretation of Article 361, guaranteeing that immunity doesn’t change into a device for shielding misconduct or undermining the rule of regulation.

In the end, the idea of immunity, although crucial for the functioning of presidency, have to be balanced with a dedication to accountability. The drafters of the Structure could not have absolutely anticipated the complexities of recent governance, however it’s now essential to interpret Article 361 in a manner that preserves each the dignity of the workplace and the ideas of justice that type the muse of Indian democracy. The judiciary wants to offer a transparent interpretation of Article 361 to realize the identical following precedents from the US courts.