The Telegraph
Saturday , July 5 , 2014
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Although the recent events involving the former governor of West Bengal, M.K. Narayanan, were unprecedented — media reports highlighted the fact that he was the “first governor” to be questioned by the Central Bureau of Investigation — they may have paved the way for an intense debate between legal luminaries and a possibly long court battle. The case in question surrounds the AgustaWestland VIP chopper scam. As a result of these events, anyone holding a gubernatorial post in the future may be considered fair game for ‘sensational’ news.

At present, let us think about the extent to which the clauses in the Constitution, those in the Indian Penal Code and those found in the Code of Criminal Procedure can be applied to governors. Which law can prevail over the other? Do the tenets of the Constitution or those in the IPC or the CrPC gain precedence? In an increasingly tense political environment, how can the recent events affect the rights or the immunity powers of governors or constitutional appointees?

According to Article 361(1) of the Constitution, the governor 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.” Article 361(2) says that “No criminal proceedings... shall be instituted or continued against... the governor of a state... in any court during his term of office.” Article 361(3) stipulates that “No process for the arrest or imprisonment of... the governor of a state, shall issue from any Court during his term of office.” Article 361(4) clarifies that “No civil proceedings... shall be instituted during his term... 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... until the expiration of two months next after notice in writing has been delivered to the President or the Governor... 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.”

What could the legal and Constitutional outcome of the CBI’s questioning of a (now former) governor be? Should the unprecedented development be considered good or bad for the future? Let us examine the situation from the legal perspective.

There exists a maxim in English common law — from which the Indian Constitution has taken much inspiration — that the ‘king can do no wrong’. The underlying belief here is derived from the feudal principle that the ‘king cannot be sued in his own Court’.

The American constitution, however, does not have any provision granting absolute immunity to the president of the United States of America. Thus in the Mississippi vs Johnson case in 1866, it was argued, and upheld, that the ‘immunity’ which is conferred upon the US president does not proceed upon any theory that the ‘king can do no wrong’. On the allegation of perjury, contempt proceedings were initiated against the former US president, Bill Clinton.

In the constitution of Ireland (1937), too, the president is immune from legal proceedings for acts done or purporting to be done by him in his official capacity. Impeachment is the only way to remove him from office.

However, in the Indian Constitution, while Article 361(1) deals with the actions of the governor with respect to his “office”, Article 361(4) deals with acts done by him in his “personal” capacity. Thus, whereas the ‘official’ clause creates an absolute bar in prosecuting him, the mention of “personal” capacity in Article 361(4) creates only a partial bar, in the form of a ‘notice’ of “two months” prior to instituting civil proceedings. Hence, logically, there can be no Constitutional bar against summoning the president or a governor to be a witness in a case.

When a governor is called to be a witness in a case of ‘criminal conspiracy’ under Section 120(B) of IPC, it will create a potentially problematic situation. This is because it says that “Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.”

What does the governor say in such a situation, and how does he say it? He is asked to be a witness through a summon issued under Section 161 of the CrPC (1973). Before this, a first information report is lodged with an “officer in charge of a Police Station”, under Section 154 of the CrPC, against the accused parties. The problem begins when the governor, as a ‘witness’, is called to speak before investigating officials. The governor has to appear in person. Though he has not been accused, the distance between being a witness and an accused party could be covered quickly, owing to the nature of the case in which the governor appears as a ‘witness’.

Why is this so? The philosophy behind criminal law in India is that any violation of public rights or a criminal act against human beings is equivalent to committing an offence against the State. When a governor appears as a witness, his statement can either corroborate or contradict the statements of other witnesses or the accused. Either way, he is in a dilemma. If the alleged crime is corroborated (with circumstantial and direct evidence), then it is possible that charges of abetment may be levelled against the governor, which could ruin the exalted image of his office. Section 161 of the CrPC says that one “shall be bound to answer truly all questions....” If the words the governor utters are found to be errorneous in any way, then Sections 202 and 203 of the IPC could be invoked, and the witness could be prosecuted for providing “false information”. That would be the nastiest blow for anyone who has held a top position in the government for decades.

Therefore, a number of potential situations could unfold. But the worst thing that could happen to a governor would be his turning into an accused party from a witness. This would not bode well for the gubernatorial post in any state in the future.