Can A Governor Himself Waive Immunity Conferred On The Office By Article 361?

It is absolutely clear in the language of Article 361 that it is a command issued by the Constitution to the courts as a matter of public policy with a view to implement its object of ensuring the insulation of the high office of the President, Governor or the Raj Pramukh and no person can, by his act or conduct, relieve the court of the solemn obligation imposed on it by the Constitution.

A fascinating issue of far-reaching constitutional significance had arisen before the division bench of the Gauhati High Court.[1] The then Governor of Assam Janaki Ballabh Patnaik had approached the division bench of the high court challenging the order of the single judge dated 06.01.2010 in two writ petitions filed by Kulendra Daulagupu (an elected member of the North Cachar Hills Autonomous District Council of Assam)—WP (C) No.6 of 2010 and WP (C) No.50 of 2010. The subject matter of challenge in the writ petitions before the single judge was the order passed by the Governor in the exercise of powers under Paragraph 16 (2) of the Sixth Schedule to the Constitution of India assuming to himself all the functions of the North Cachar Hills Autonomous District Council. The single judge had stayed the operation of the order of the Governor and while doing so had directed that “the District Council shall be allowed to function and the Respondents shall restrain themselves from interfering or causing any hindrances to the functioning of the District Council except in accordance with law”.[2]

The issue though hotly debated before the division bench was eventually not gone into as the Governor after a detailed hearing did not pursue the appeal.

Article 361 of the Constitution of India confers protection of the President Governors and Raj Pramukhs of a state from being answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise of performance of those powers and duties.   The object is to protect the high office of the President and Governor and Raj Pramukh from being dragged into court proceedings and the language of Article 361(1) makes it explicit that the President or the Governor or the Raj Pramukh of a state “shall not be answerable to any Court”.  Article 361 is designed to protect the High Office of the Governor, not the person occupying it.   The purpose behind Article 361 is to keep the High Office of the Governor out of court proceedings as the Governor is the head of the Executive and this constitutional injunction cannot be waived by the occupant/incumbent of the office of the Governor.  It matters not whether he is impleaded as a respondent/defendant by the petitioner/ plaintiff; he cannot answer the allegations.  The government has to defend his action and even where malafides are alleged, the government must meet the case.  The Governor is not answerable and cannot and should not answer.  Article 361 is meant to immunize the Governor from court proceedings as the head of the Executive arm of the state.  There is no immunity to the government.  Whatever the government may do, the person who is Governor cannot answer when he is constitutionally unanswerable.  The person cannot waive an immunity that attaches to the office.

The separation of powers under our constitutional scheme shows that a law may be struck down but the Parliament or Legislature cannot be a party to court proceedings.  Similarly, the court cannot question the legality or regularity of proceedings in Parliament or Legislature.  On the other hand, Parliament and Legislature, while having the power of impeaching judges, cannot discuss the conduct of judges except in impeachment proceedings.  The government is accountable to the Parliament or Legislature.  Its actions can be scrutinized by the court for illegality.  But the Head of the State is immunized from court proceedings.

It would thus, be fallacious to say that at his own sweet will and fancy, and may be for good reasons, the person who is the Governor can render Article 361 a dead letter by the simple expedient of waiving the constitutional mandate. And surely he cannot go to court by way of a special leave petition or writ petition in respect of anything done by in discharge or purported discharge of his constitutional functions—when he is expressly made not answerable to the court. “Answerable” does not mean being compelled to answer; it means that there is a constitutional mandate to the courts not to seek or accept his answers.  The Governor is to be left alone.

The second proviso appended to Article 361 provides that the limitation contained in Article 361 cannot be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the government of a state.  A person aggrieved by an action/order passed by the Governor can sue the action by bringing appropriate proceedings against the government of a state and by virtue of Article 300 be sued in the name of the state.

The framers of the Constitution have used the phrase “shall not be answerable to any court” in its wisdom. They could have used “shall not answer” instead.  Article 361 is, therefore, an injunction on the courts to question the President or Governor or Rajpramukh with regard to the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. It is an obligation imposed on the courts not to question them in matters covered by Article 361.

The question is can the obligation cast on the courts be waived by the incumbent holder of the office of the President, Governor or Rajpramukh. In the face of such an unequivocal admonition administered by the Constitution, which is the supreme law of the land, is it open to the court to disregard the constitutional mandate merely because a person tells the court that it may do so? It is absolutely clear in the language of Article 361 that it is a command issued by the Constitution to the courts as a matter of public policy with a view to implement its object of ensuring the insulation of the high office of the President, Governor or the Raj Pramukh and no person can, by his act or conduct, relieve the court of the solemn obligation imposed on it by the Constitution.

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 malafides. See Rameshwar Prasad vs. Union of India[3] at paragraph 173 Page 132.

The purported waiver by the Governor would expose his office to the threat of action against him in criminal and civil proceedings which may arise out of the waiver which is again barred by clauses (2), (3) and (4) of Article 361 making the said Article a dead letter. Can the Governor charged with the duty to preserve, protect and defend the Constitution plead to the court to destroy it?

The Constitution Bench of the Hon’ble Supreme Court of India in Rameshwar Prasad vs. Union of India (supra) has held as under:

“179. The position in law, therefore, is that the Governor enjoys complete immunity. The Governor is not answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. The immunity granted by Article 361(1) does not, however, take away the power of the Court to examine the validity of the action including on the ground of mala fides”.

Suppose as in the case of JB Patnaik (then Governor of Assam), the Governor wanted to waive the immunity conferred by Article 361 of the Constitution, it would have led to disastrous consequences and would further have raised pertinent questions like:

(i)         In case of non-compliance with the orders of the court, can the Governor be held up for contempt or whether the jurisdiction for contempt can be invoked against the Governor?

(ii)        In case of the filing of a false affidavit, would proceedings for perjury lie against the office of the Governor despite the bar contained in Article 361 (2) of the Constitution?

The Constitution does not envisage the Governor defending any order or action in a court of law and therefore, Article 361 confers an absolute protection to the Office of the Governor from being answerable to any court and the action of the Governor is an action of the state government.  It is the state government that has to defend the said action of the Governor. The immunity conferred on the Governor by Article 361 of the Constitution of India is an absolute immunity and cannot be waived nor can the court overlook the protection conferred by the Constitution.  The Constitution mandates absolute immunity to the office of the President/Governor by virtue of Article 361(1) and such a Constitutional mandate is intricately connected to the high office.

In Gaekwar Baroda State Railway vs. Hafiz Habib-ul-Haq  & Ors.[4], the Privy Council considered the provisions of Sections 86 and 87 of the Civil Procedure Code, 1908 and particularly, Section 86 thereof which contained a restriction in suing any Prince or Chief or any Ambassador or Envoy of a foreign State without the consent of the Governor-General in Council, and held that “the Sections relate to an important matter of public policy in India and the express provisions contained therein are imperative and must be observed”.

The Constitution is not only the paramount law of the land but, it is the source and sustenance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose.[5]

Thus, the Doctrine of Waiver can have no application to provisions of law which have been enacted as a matter of policy.  On the same analogy, Article 361 confers complete immunity to the office of the Governor for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties and, therefore, has been enacted as constitutional policy to protect the high office of the Governor and hence, cannot be waived.

The author, Arunabh Chowdhury, is an advocate at the Supreme Court of India. 

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

[1] Misc Case No. 615 of 2010 H.E The Governor of Assam Vs. Kulendra Daulagupu & Ors.

[2] Order dated 06.01.2010 in WP(C) Nos. 6 & 50 of 2010.

[3] 2006 (2) SCC 01

[4] AIR 1938 PC 165

[5] Olga Tellis Vs. Bombay Municipal Corporation AIR 1986 SC 180 at para     28 Page 192