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Home / UPSC Editorials / Immunity of Governor

Immunity of Governor: Background, Article 361 & its Provisions| UPSC Editorials

Last Updated on Jan 27, 2025
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The Supreme Court of India is set to review the scope of immunity granted to the Governor under Article 361 of the Indian Constitution. This major move follows a petition alleging sexual harassment by the contractual employee of West Bengal Raj Bhavan against C V Ananda Bose, the Governor of West Bengal. The case has broad ramifications on the role and accountability of constitutional functionaries in India.

Analysis based on 

Editorial What is Governor’s immunity under Article 361, set to be reviewed by Supreme Court? published in The Indian Express on July 22nd, 2024

Topics for UPSC Prelims

Articles 153-159, Article 356 (President's Rule), Privileges and Immunities (Article 361), Financial Privileges, Interaction with State Legislature.

Topics for UPSC Mains

Constitutional Role and Executive Responsibilities (Articles 153-159), Reforms and Recommendations of the Sarkaria Commission, Punchhi Commission, National Commission to Review the Working of the Constitution, Comparative Analysis (Governor vs. President), Centre-State Relations.

Historical Background of the Office of Governor

The office of Governor underwent significant changes from the time of its inception during the British regime until the formation of the Republic of India. The present form of the office of the Governor originated at the time of colonial rule when the administration of India was taken over by the British Crown.

In 1773, the Regulating Act brought about official recognition to the person who held the title of Governor of Bengal, one of the most famous being Warren Hastings. More importantly, it was the first of the major consolidations of executive power into one office and the trendsetter for Governors' jobs to be consolidated in other Presidencies like Madras and Bombay. The structure adopted by the British, indicative of a more hierarchical nature, allows the Governor of Bengal to have oversight powers in relation to these other Presidencies.

After the Revolt of 1857, under the Government of India Act of 1858, the British Crown finally integrated Governors into the framework of British India's administration. The governors represented the British Monarch in the provinces and held high status as functionaries in the provinces with considerable powers over civil, military, and administrative matters.

This responsibility was further defined with the Government of India Act of 1935 by the introduction of provincial autonomy, which enabled provinces to have a semblance of self-government. The Governors emerged as key state figures in that they were given the important emergency powers of dismissing ministries. This represented a precursor dual role, as envisioned in independent India later: acting as a guardian of the Constitution at the state level and representing the Central Government.

The role of the Governor was debated at great length in the Constituent Assembly and it was finally envisioned that he would be the constitutional head of the state, mainly tasked with ensuring that the state's administration ran according to provisions laid down in the Constitution. The role of the Governor, as we know it today, came into being on 26 January 1950 when the Constitution was adopted.

Read the article on Parliamentary Privileges and Immunities!

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Privileges and Immunities of the Governor

The privileges and immunities accorded to the Governor protect the office from desecration and infringement of independence, whereby he may perform duties without interference or threats from any external authority or source.

Article 361 of the Indian Constitution provides immunity to the Governor against any criminal proceedings for actions performed in the exercise of official duties. In explaining the rationale behind this constitutional provision, it is stated that Governors should not be embroiled in any litigation process, which might impede them from carrying out constitutional duties. Furthermore, a Governor cannot be arrested or imprisoned for any act done while performing official duties during their tenure.

He is also entitled to a variety of financial privileges: a residence, salary, and allowances. All these are charged to the Consolidated Fund of the State, making them quite impervious to political influences over questions of personal remuneration. It is this financial independence that underpins the Governor for an unbiased performance of constitutional obligations.

Another critical aspect of the Governor's office is legal protection. That the Governor cannot be held answerable to any court for exercising and performing the powers and duties inherent in the office is ensured by constitutional provisions. The legal provision safeguards the dignity of the office and assures that the Governor can function without the distraction of tussles in courts over official acts.

Read the article on Privilege Motion!

Constitutional Provisions Related to the Governor

The role, powers, and functions of the Governor are elaborately defined in various articles that clearly demarcate a framework of responsibilities for him in the Indian Constitution.

Article 153

Article 153 establishes that there shall be a Governor for each state. This article is fundamental as it cements the office of the Governor within the federal structure of the Indian polity, mandating every state to have a constitutional head to oversee its functions.

Article 154

This article vests the executive power of the state in the Governor, allowing these powers to be exercised either directly or through officers subordinate to the Governor. It underscores the Governor’s role as the ultimate executive authority in the state, ensuring the enforcement of laws and policies.

Article 155

According to this article, the Governor of a state is appointed by the President by warrant under his hand and seal. This establishes the appointment mechanism and reflects the integration of the state’s governance within the broader framework of the Union.

Article 156

Article 156 states that the Governor holds office during the pleasure of the President. This clause provides the President with the authority to remove the Governor, fostering a connection between the state executive and the central authority, albeit raising concerns about potential misuse for political purposes.

Article 157

This article lays out the qualifications for the appointment of a Governor, specifying that the individual must be a citizen of India and must have completed the age of 35 years. It sets the fundamental criteria ensuring that the appointee has sufficient maturity and understanding of public affairs.

Article 158

Article 158 details the conditions of the Governor’s office, including the restrictions that the Governor shall not be a member of either House of Parliament or the State Legislature and shall not hold any other office of profit. These conditions prevent conflicts of interest and ensure impartiality in the administration.

Article 159

This article requires the Governor to make an oath or affirmation before assuming office, in the presence of the Chief Justice of the High Court exercising jurisdiction in relation to the state, or in his absence, the senior-most Judge of that Court available. This oath binds the Governor to uphold the Constitution and the law.

Read the article on the Breach of privilege!

Difference Between the Role of the Governor and the President

The below table gives the difference between the roles of governor and the president:

Aspect

Governor

President

Appointment

Appointed by the President of India

Elected by an Electoral College

Term of Office

Holds office at the pleasure of the President

Fixed term of five years

Powers

Mainly advisory or ceremonial; some discretionary powers

Supreme executive authority; has substantial powers

Executive Power

Executed at the state level

Executed at the national level

Removal

Can be removed by the President

Can be impeached by Parliament

Legislative Role

Can summon and dissolve the state legislature

Can summon and dissolve Parliament

Financial Role

Lays the state budget before the legislature

Lays the national budget before Parliament

Challenges Associated with the Governor’s Office

There are several function-associated challenges with the office of the Governor, where aftereffects on efficiency and impartiality are impacted.

  • Political Interference: The Governor is often perceived as an extension of the Central Government. This has to occur when the state and Centre governments are ruled by different political parties. This perception destroys the federal spirit and results in rivalry between the state and central governments.
  • Discretionary Powers: The discretionary powers of the Governor, like his power to dissolve the State Assembly or appoint a Chief Minister in a hung assembly, are matters of controversy and are widely alleged to have been used for extracting political leverage. This may trigger a situation of political instability at the state level by throwing a spanner in democratic processes.
  • Lack of Fixed Tenure: In the context of governors serving at the pleasure of the President, there is an in-built denial of security of tenure, leading to a situation where governors may act towards decisions that supposedly please the central authority. This can weaken the objective functioning of the office.
  • Dual Role: The dual role of the Governor as the constitutional head of the state and representative of the Central Government puts him in a situation of potential conflict of interest in matters where national and state interests diverge. Balancing these two roles is often quite difficult.

Read the article on the Constitutional discretion of the governor!

Reforms Suggested by Various Committees Regarding the Office of Governor

Sarkaria Commission, 1983

The Sarkaria Commission has made the following major recommendations to rectify the anomalies in the office of the Governor.

  • Selection Process: The Commission made a demand for a more consultative process for the selection of Governors and recommended consultation with the Chief Minister of the concerned state in deciding the Governor, with the view that the person appointed as a Governor must be acceptable to the state's political leadership.
  • Tenure Security: The five-year fixed term for Governors was recommended to provide stability to the office and ensure unbiased functioning without the constant threat of removal.
  • Role Clarity: It reiterated the necessity of clear guidelines on the discretionary powers of the Governor, avoiding arbitrary use and ensuring actions within a well-defined framework.

Punchhi Commission (2007)

The Punchhi Commission, which was constituted to look into the relations of the Centre with the States, had recommended several reforms for the office of the Governor.

  • Procedure for Removal: The body insisted on a fixed tenure and a transparent removal process for the Governors so that disastrous removal based on political considerations can be avoided.
  • Conflict Resolution: The Commission suggested formal mechanisms to resolve the conflicts between the Governor and the state government to keep the administrative machinery running smoothly.
  • Appointment Guidelines: It suggested a committee consisting of the Prime Minister, Home Minister, and the Chief Minister of the concerned state that would make recommendations for appointments to involve a wider consultative process.

National Commission to Review the Working of the Constitution (2000)

The National Commission to Review the Working of the Constitution made certain significant recommendations so that the Governor's office became efficient and impartial.

  • Neutral Selection: It provided for the appointment of Governors based purely on merits and not because of political affiliations, to ensure that the independence and non-partisanship of the office are not tampered with.
  • Security of Tenure: The Commission pleaded for a fixed tenure and protection from arbitrary removal to ensure that Governors may work freely without fear of premature dismissal.
  • Role Definition: This stressed on the fact that the roles and responsibility are to be clearly defined, and if they are not defined, it could lead to overlapping and conflicting with state governments, and thus, Governors would act clearly by their constitutional mandate.

All these reforms would strengthen the office of the Governor by making it independent, impartial, and efficient, thereby strengthening the federal structure and harmonious Centre-state relations.

Read the article on the Ordinance power of president and Governor!

Judicial Interpretations

The scope of the immunity under Article 361 was explained through several judicial pronouncements, including:

  • State vs Kalyan Singh & Ors (2017): The Supreme Court, which was hearing the Babri Masjid demolition case, held that former Rajasthan Governor Kalyan Singh enjoyed immunity under Article 361 until he ceased to be Governor. The court postponed the trial against him until the end of his tenure.
  • Madhya Pradesh Vyapam Scam: In this case (2015), the Madhya Pradesh High Court permitted the filing of an FIR but directed that the Governor's name be removed from the investigation until he demits office, thereby protecting the sanctity of the office.
  • Rameshwar Prasad vs. Union of India, 2006: Here, the Supreme Court examined the immunity in civil cases since the Governor enjoys absolute immunity for all acts performed within constitutional powers; still, this does not foreclose judicial review of an act done in bad faith or that goes beyond constitutional duties.

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UPSC Previous Year Questions

Year

Question

2022

Discuss the essential conditions for exercise of the legislative powers by the Governor. Discuss the legality of re-promulgation of ordinances by the Governor without placing them before the Legislature.

UPSC Practice Questions

Q1. Critically examine the role of the Governor in Indian states. Discuss the constitutional provisions that govern the office of the Governor and the challenges associated with the functioning of this office.

Q2. The position of the Governor has often been a point of contention in Centre-State relations. Analyze the reasons behind this contention and suggest measures for reform based on the recommendations of various committees.

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