WHEN EQUALITY IS JUST A MATTER OF PERSPECTIVE

Abstract

The doctrine of Rule of Law reposes upon the canons of  the supremacy of law and equality before the law, ensuring that no individual stands above legal accountability. However, Article 361 of the Indian Constitution grants the President and Governors immunity from civil and criminal proceedings while in office, voicing concerns of inequality and prospective misuse. Judicial interpretations of the courts have often confirmed this absolute immunity, but emerging challenges, such as the case against West Bengal Governor C.V. Ananda Bose, have rekindled debates on its constitutional validity. This article critically examines the scope of Article 361, signaling the tension between constitutional protection and accountability, and argues that unchecked immunity undermines human dignity, constitutional benchmarks and the very spirit of justice.

Introduction

The pursuit of accountability is fundamentally a political endeavor, in which “holding individuals accountable” frequently relies more on evidence and political debate than on a precise assessment of individual responsibility.^[1]

The doctrine of Rule of Law, as adopted in India by the Constitution makers serves as the basis of administrative law. This essentially subjects the individuals to the principles of supremacy of law and equality before the law, be the individual politically superior or politically inferior. In the words of Dicey^[2] “With us, every official from the Prime Minister down to a constable or a collector of taxes is under the same responsibility of every act done without legal justification as any other citizen.” These principles of supremacy of law and equality before the law are enshrined broadly in Articles 14 to 18 of the Indian Constitution.

Are All Animals Equal In The Farm?

Piercingly, a dystopian world is closer to reality than a utopian one. The satirical expression from George Orwell’s writing presents itself, “All animals are equal, but some animals are more equal than others.”^[3] Arguably, some animals are more equal than others, for the principle of equality itself authorizes us to make reasonable distinctions and to draw intelligible differences. Interestingly, such distinctions are insisted to be based on the idea of the promotion of public good (so the governance of the nation is not hampered), which, in some contexts, may be accepted, but simultaneously can be rejected outright in some. One such provision is Article 361 of the Indian Constitution, which protects the President and the State Governor from civil and criminal liability, in a way no other individual is protected.

Article 361 Of The Indian Constitution

When power is given without holding the authority figure accountable, and absolute immunity^[4] from legal consequences is ensured, its ultimate result is despotism and oppression. Concerning a nation that claims to stands on the pedestal of democracy, it negates the Rule of Law; hence, principles of supremacy of law, and equality before law are violated. In a State, that proclaims to uphold the Rule of Law as its Constitutional value, those in power, ideally, must in no way be more equal than those who are not in power. 

Rule of Law insists that the government should operate within a framework of law in everything it does and that it should be accountable through law when there is a suggestion of unauthorized action by those in power. Also, the law should be the same for everyone so that no one is above the law and everyone has access to the law’s protection.^[5]

Article 361 of the Indian Constitution states that the President or Governors of a State cannot be held accountable in any court for the execution and performance of their powers and responsibilities or for any actions taken or purported to be taken while exercising those powers and duties. Criminal actions cannot be initiated or persisted against the President or a State Governor in any court during their time in office. No court shall issue any orders for the arrest or detention of the President or State Governor while they are in office. This lack of accountability contradicts the Rule of Law, results in unequal treatment before the law, and has the potential for misuse.

It may be argued that the President and the State Governor are not altogether exempted from the jurisdiction of the court; civil suits can be brought against them, and they may be summoned to appear as witnesses in court.^[6] But it may be asked whether it is sufficient to uphold the principles of supremacy of law and equality before the law, that the President and the State Governor are not immune from judicial scrutiny, especially if they disregard the process of a court, they cannot be arrested or imprisoned^[7] and rendering the petitioner remediless. Thus, the provision must be questioned and examined.

Interpretation of Courts

In earlier decisions of various courts, the notion of absolute immunity under Article 361 has been upheld. In Rameshwar Prasad vs Union of India^[8], The court held that while the Governor enjoys “complete immunity” when exercising their powers under Article 361(1), this immunity “does not, however, take away the power of the Court to examine the validity of the action including on the ground of malafides (actions taken in bad faith)”. The court reasoned that it has become imperative and necessary that the right persons are chosen as Governors if the sanctity of the post as the Head of the Executive of a State is to be maintained. In another case, The Madhya Pradesh High Court held that Article 361(2) “guarantees absolute protection from any malicious campaign or publicity against the Head of a State, so as not to undermine the solemnity of that office.”^[9]  The court further said that the core issue is about the complete constitutional immunity extended to the incumbent occupying the office of Governor, in terms of Article 361 of the Constitution of India. Having regard to the nature of constitutional duties and powers of the Governor, that can be interfered with only if the constitution permits to do so. The institution of criminal action against the Governor cannot be justified based on any legislation made by the Parliament which inevitably would impede the constitutional rights and duties to be discharged by the Governor wholly or partly.

This trend is shifted in a recent petition filed against Bengal Governor, C.V Ananda Bose. A past worker of West Bengal Raj Bhavan, who brought forward allegations of sexual harassment against the State’s Governor, CV Ananda Bose, has filed a petition in the Supreme Court contesting the immunity that the Governor asserts from criminal prosecution under Article 361 of the Constitution.^[10] A three-judge Supreme Court Bench has agreed to hear the plea, seeking to redefine the contours of the Constitutional immunity, enjoyed by the Governor of State, marking a significant development in the case.^[11] Article 361 immunity should not be total, the plea argued, especially when it comes to cases involving criminal activity or fundamental rights abuses. It argued that although a civil lawsuit can be filed against a governor following a two-month notice, there is no similar requirement for criminal cases, which leaves victims without options. “The object of Article 361 cannot be to impair the power of the police in such situations.”^[12] The case is still pending, and the Supreme Court will evaluate how to strike a balance between constitutional immunity and accountability in light of such grave accusations. The Supreme Court should not uphold the Governor’s defence of absolute immunity, particularly at the stake of human dignity. Upholding such immunity in the face of serious allegations would mark a serious setback to the constitutional ethos and render the pursuit of justice meaningless.

Conclusion

Although Article 361 holds significant value in safeguarding constitutional roles, it also opens avenues for potential misuse for political and personal advantage. It is essential to implement reforms to prevent immunity from being used as a cover for misconduct, while still maintaining the respect associated with high-ranking positions. In contrast to ordinary citizens, as well as high officials like the Prime Minister and Chief Ministers, the President and Governors benefit from such total immunity. This leads to the impression that certain individuals are exempt from legal accountability, which goes against the democratic ideal of equality in the eyes of the law.^[13] This situation arises when equals are treated unequally without justification, which is why this issue requires attention. Justice must not solely be achieved, but it must also be apparent to the public.

Bibliography

1. K. Takwani, Lectures on Administrative Law (5th edn. EBC 2012)
2. N. Shukla, “Constitution Of India”, (14th edn, EBC 2022)
3. George Orwell, Animal Farm ( first published 1945, FP 2023)
4. Prabhat Shukla, “An Approach To Indian Constitution” (2015) vol 1, SCHOLEDGE 8
5. Robert Gregory, “Accountability and Responsibility (2017) <https://oxfordre.com/politics/display/10.1093/acrefore/9780190228637.001.0001/acrefore-9780190228637-e-525> accessed 08 February 2025
6. Edward N. Zalta, “The Rule of Law” (2016) <https://plato.stanford.edu/entries/rule-of-law/> accessed 08 February 2025
7. Dhananjay Mahapatra, “Supreme Court To Examine If Governors Are Immune From Criminal Cases” (The Times Of India, 20 July 2024) <https://timesofindia.indiatimes.com/india/supreme-court-to-examine-if-governors-are-immune-from-criminal-cases/articleshow/111871434.cms> accessed 08 February 2025

^[1] Robert Gregory, “Accountability and Responsibility (2017) <https://oxfordre.com/politics/display/10.1093/acrefore/9780190228637.001.0001/acrefore-9780190228637-e-525> accessed 08 February 2025

^[2] C.K. Takwani, Lectures on Administrative Law (5^th edn. EBC 2012)

^[3] George Orwell, Animal Farm ( first published 1945, FP 2023)

^[4]Rameshwar Prasad & Ors vs Union Of India & Anr [2006] 1 S.C.R. 562

^[5] Edward N. Zalta, “The Rule of Law” (2016) <https://plato.stanford.edu/entries/rule-of-law/> accessed 08 February 2025

^[6]  V.N. Shukla, “Constitution Of India”, (14^th edn, EBC 2022)

^[7] Ibid

^[8] AIR 2006 SUPREME COURT 980

^[9] Nidhi Kaim & Anr Vs State Of M P And Ors (2017) 4 SCC 1

^[10] W.P.(Crl.) No. 295/2024

^[11] Dhananjay Mahapatra, “Supreme Court To Examine If Governors Are Immune From Criminal Cases” (The Times Of India, 20 July 2024) <https://timesofindia.indiatimes.com/india/supreme-court-to-examine-if-governors-are-immune-from-criminal-cases/articleshow/111871434.cms> accessed 08 February 2025

^[12] Ibid

^[13] Prabhat Shukla, “An Approach To Indian Constitution” (2015) vol 1, SCHOLEDGE 8