Srinagar: Are Lieutenant Governors of Union Territories also bestowed with immunity in the constitution of India?
This question has been triggered by a recent order of the Central Administrative Tribunal (CAT) in which it observed that the LG has immunity under Article 361 of the constitution. The CAT’s observation coincidently comes at a time when the Supreme Court has agreed to examine the scope of immunity available to governors under the constitution. Legal experts argue that LGs have no such protection.
Tribunal order
In its order on July 16, the Tribunal, which adjudicates service matters, dismissed a plea filed by Ashok Parmar, a senior Indian Administrative Service officer serving in Jammu and Kashmir relating to his service matters. The main reason cited by the Tribunal for the dismissal of the petition was that the LG is protected by the Article 361 of the constitution.
The CAT’s Jammu branch said:
“From the perusal of record, it transpires that the applicant has impleaded the Hon’ble Lieutenant Governor of Union Territory of Jammu & Kashmir by name, which is not permissible in view of Article 361 (4) of Constitution of India.”
The Tribunal said that the applicant did not follow the procedure laid down in the Article 361.
“When considering the specifics of the case in hand, a straightforward interpretation of Article 361 of the Constitution of India makes the legal point evident that no civil proceedings can be instituted against the Hon’ble Lieutenant Governor, until the expiration of two months next after notice in writing has been delivered to the Hon’ble Lieutenant Governor stating the nature of the proceedings, the cause of action therefore, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims. The applicant has failed to produce any proof or evidence, that such a notice has been made and delivered. Hence, this Tribunal is not inclined to grant any relief to the applicant to this extent.”
The term ‘Lieutenant Governor’ is not mentioned in Article 361.
Citing the immunity provision, the Tribunal also admonished the IAS officer for filing the application:
“It is quite astonishing to note that the applicant, a senior IAS officer with extensive knowledge of Constitution of India and its laws, proceeded to file original application seeking relief against the Hon’ble Lieutenant Governor, who has been bestowed with immunity under Article 361 of the Constitution of India.”
It also imposed a fine of Rs one lakh on the applicant “in order to prevent filing of such mischievous and frivolous petitions in future”.
Constitutional provision
Article 361 grants immunity to the president and governors while they are in office. They have protection from both criminal and civil proceedings.
While criminal proceedings cannot be initiated or continued against them while in office, civil proceedings for personal acts can be initiated only after giving two months’ notice.
Article 361 says:
(1) The President, or the Governor or Rajpramukh of a State, shall not be 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:
Provided that the conduct of the President may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under article 61:
Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State.
(2) No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any court during his term of office.
(3) No process for the arrest or imprisonment of the
President, or the Governor of a State, shall issue from any court during his term of office.
(4) No civil proceedings in which relief is claimed against the President, or the Governor of a State, shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President, or as Governor of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor, as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefore, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims.”
Reignites question of immunity to LG
The CAT’s observation has brought back the question of whether LGs or administrators of UTs are given similar protection by the constitution.
Constitution expert and former secretary general of the Lok Sabha, P.D.T. Achary, told The Wire that the LG has no such immunity. “There is no mention of LG in it (Article 361). It offers immunity only to governors and the president,” he said.
On May 8, 2023, a court rejected Delhi LG V.K. Saxena’s plea to stay the proceedings against him in a case registered against him and three others for assaulting Narmada Bachao Andolan activist Medha Patekar. In his plea, Saxena had sought a stay on trial against him as long as he holds the post of LG of Delhi by invoking Article 361.
The order of lower court was challenged by Saxena in the Gujarat high court. The high court granted him interim stay on trial till pendency and final disposal of his plea against the lower court’s order.
Advocate Anand Yagnik, who is counsel for Medha Patekar in the case, said that the Gujarat high court’s stay in the matter is in operation.
“The final hearing of the matter filed by Mr. Saxena seeking protection under Article 361 is pending,” he said.
SC to review immunity of governors
On July 19, the Supreme Court agreed to examine the contours of Article 361 of the constitution which grants “blanket immunity” to governors from any kind of criminal prosecution.
The Supreme Court agreed to look into the matter while hearing a plea of a woman employee of West Bengal Raj Bhavan, who has alleged molestation by state governor C.V. Ananda Bose.
