By Sanjay Raman Sinha
The gubernatorial post of governors in under controversy once again. As allegations of molestation are levelled against West Bengal Governor CV Ananda Bose by a contractual woman employee, in Punjab, the AAP government brought in a Bill seeking the removal of Governor Banwarilal Purohit as Chancellor of state-run universities. However, President Droupadi Murmu refused to clear the Bill. Meanwhile, the Odisha assembly was adjourned twice on July 23 as the Opposition demanded action against Governor Raghubar Das’ son for allegedly assaulting a government official.
The governor’s post, while seen as ceremonial, was once vested with grandeur and respect. But now governors are seen as extensions of the centre and running into trouble with Opposition-ruled states. The political firmament is rife with mudslinging and matters have even reached the apex court.
In the West Bengal case, the Supreme Court bench agreed to examine the scope and extent of Article 361 of the Constitution, which provides immunity to governors from criminal prosecution. Article 361 grants immunity to the president and governors from legal proceedings. They are not answerable to any court of law for acts done in their official capacity, which means that they cannot face criminal proceedings, arrest or imprisonment during their term. Furthermore, civil proceedings against them require a two-month notice for acts in their personal capacity.
This immunity is granted to ensure that they discharge their duties without fear of legal proceedings. It is a shield which the Constitution has bequeathed to them. However, this immunity is conditional as it is not absolute and can be subject to judicial scrutiny.
Of late, the conduct of many governors has become a matter of concern and initiated public debate on their propriety to indulge in politicking. This is more so when the Constitution assigns them crucial responsibilities wherein its being apolitical and neutral is of prime importance. This is despite the fact that the post of a governor is nomenclatured as an “agent of the centre”.
In the past, Kerala Governor Arif Mohammed Khan had a setback in his recurring stand-off with the CPI(M) government when the Kerala High Court quashed four nominations he had made to the senate of Kerala University. The four students were activists of the RSS’s student wing, ABVP, and it was alleged that they were recommended by the Sangh Parivar. Tamil Nadu governor RN Ravi too has often locked horns with the state government, primarily over delayed assent to bills passed by the legislature. However, he did so later after much pressure.
The governor (as is the President) is a symbol of constitutional propriety and should uphold its values uncompromisingly. This is not happening. Bills are being held up without reason and governors are cocking a snook at state governments and questioning their decisions. This has not only created bad blood between the two constitutional posts of governor and chief minister, but the centre is also seen in cahoots with the “agent’’.
This is not the first time that a matter related to Article 361 has been brought to court. Over the years, many cases have made the courts interpret the scope and limitations of the Article.
The Rajasthan State Electricity Board vs Mohan Lal (1967) case involved the question of whether the actions of the governor could be challenged in a court of law. Justices Vashishtha Bhargava, K Subba Rao (chief justice), JC Shah, JM Shelat and GK Mitter of the Supreme Court held: “Article 361(1) clearly provides that the Governor is not answerable to any court for the exercise and performance of the powers and duties of his office. However, this does not mean that the actions of the Governor, taken in his official capacity, are beyond the purview of judicial review. The immunity is personal to the Governor and does not extend to the actions taken by him in the discharge of his official functions.”
The Rameshwar Prasad & Ors vs Union of India & Anr. (2006) case involved the dissolution of the Bihar Legislative Assembly and the role of the governor in recommending the dissolution. The then Chief Justice of India KG Balakrishnan and Justices YK Sabharwal and Arijit Pasayat presided over the matter. The key question was whether the dissolution of the assembly under Article 356(1) could be ordered to prevent the staking of claim by a political party on the ground that the majority has been obtained by illegal means.
The bench held: “Article 361 provides immunity to the Governor for the exercise and performance of the powers and duties of his office. Governor is not answerable to any Court for exercise and performance of powers and duties of his office or for any act done. However, this does not mean that the actions of the Governor are beyond judicial review. The immunity extends only to the personal liability of the Governor and does not bar the challenge to the actions taken by him in the capacity of his office.”
Furthermore, while Article 74(2) prevents courts from reviewing the advice given by council of ministers to the president, it doesn’t stop them from examining the underlying material that formed the basis of that advice.
Notably, Justice JS Verma in Rameshwar Prasad case noted: “The Governor’s office is not a sanctuary for errant behaviour. While immunity is granted to ensure smooth functioning, it should not become a shield for unconstitutional actions. The actions of the Governor must be within the ambit of the Constitution and the law.”
In SR Bommai vs Union of India (1994), the judgment dealt with the dismissal of state governments and the imposition of President’s Rule under Article 356. The nine-judge bench of the Supreme Court comprising Justices Kuldip Singh, PB Sawant, Katikithala Ramaswamy, SC Agarwal, Yogeshwar Dayal, BP Jeevan Reddy, SR Pandian, AM Ahmadi and JS Verma delivered the momentous verdict. The question related to the scope and extent of judicial review of the president under Article 356(1) of the Constitution.
The bench held: “While Article 361 grants immunity to the President and Governors from criminal prosecution, it does not make their actions immune from judicial review. The courts have the power to examine the actions taken by the President and the Governors to ensure they are within the constitutional framework and not arbitrary or mala fide.”
In Nabam Rebia & Bamang Felix vs Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016), the role of the governor in summoning, proroguing and dissolving the legislative assembly of Arunachal Pradesh was under judicial review. The five-judge bench of Justices Jagdish Singh Khehar, Dipak Misra, Madan B Lokur, Pinaki Chandra Ghose and NV Ramana held: “The immunity provided under Article 361 to the Governor is not absolute and is subject to judicial scrutiny. While the Governor cannot be personally prosecuted, the decisions and actions taken by the Governor can be examined by the courts to ensure they adhere to constitutional provisions and principles of natural justice.”
These cases clearly define the limits of actions of governors. While Article 361 protects them from being personally prosecuted while in office, it doesn’t mean their official actions are above scrutiny. Caesar’s wife is not above reproach, so to speak.
The Supreme Court has consistently ruled that governors’ decisions must follow the Constitution and can be reviewed to ensure they are legally proper and constitutionally appropriate.
As the flagbearers of constitutional values and morality, gubernatorial actions should be in line with its ethos. The political powers-that-be should ensure that governors are not made into handmaidens, and on their part, governors should realise that the trust and responsibility bestowed on them by the founding fathers of the Constitution makes it mandatory that they abide by Constitution ethics and morality.