Can Shanmuganathan Evade Criminal Proceedings For Alleged Offences Simply By Resigning?

Given previous cases, the Centre’s decision to remove (or not) governors after allegations of cognisable offences seems to depend on their political leanings.

V. Shanmuganathan. Credit: Facebook

V. Shanmuganathan. Credit: Facebook

The resignation of the Meghalaya governor V. Shanmuganathan following allegations of him sexually harassing women at Raj Bhavan, raises key constitutional questions.

First, is the governor, under the Indian constitution, immune to prosecution for any offences committed while he was in office? As there is an apprehension that the former governor may simply get away with his alleged acts while in office because of his resignation, rather than face prosecution for his offences, this question assumes significance.

The question of whether the victims could have sought prosecution for the offences while he continued in office as the governor also needs to be answered.

Constitutional authorities, including the president and the prime minister, were apprised of the offences being committed by the governor while he was still in office; still, they chose to merely ask for an explanation, leading to his resignation, rather than facilitate the filing of an FIR and investigate the allegations against him by swiftly removing him from office.

Had he been promptly removed from office by the Centre, on the basis of the prima facie evidence which has surfaced in the form of a letter from the staff members of the Raj Bhavan, the evidence necessary for his subsequent prosecution for the offences alleged could have been protected from possible tampering or destruction.

The relevant provision is Article 361 (1) of the constitution, according to which the president or 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.

The article has a proviso stating 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, dealing with impeachment proceedings against the president.

Since the constitution does not envisage impeachment proceedings against a governor, this proviso does not apply.

The sub-clauses (2) to (4) of Article 361, insofar as they bar the institution of criminal and civil proceedings, arrest and so on against a governor “during his term of office”, don’t apply to actions that may be taken against a person who held the office of the governor for any offence committed by her while in office.

Madhya Pradesh governor’s case

On November 20, 2015, the Supreme Court issued a notice to the then Madhya Pradesh governor, late Ram Naresh Yadav, on a plea seeking his removal for his alleged involvement in the forest guard recruitment scam, one of the cases in the Vyapam scam.

The Madhya Pradesh high court, in this case, had quashed the FIR against the governor for his alleged involvement in the scam on the grounds that he enjoyed immunity under the constitution. The high court’s decision was appealed in the Supreme Court on the grounds that the immunity under Article 361 is not absolute and therefore would not come in the way of prosecuting the governor for committing an alleged cognisable offence.

The appeal petition argued that the immunity from criminal prosecution that a governor enjoys would cease to operate the moment acts of misdemeanour, either past or present, surface. The petitioners’ lawyers contended that a person occupying the office of governor must be ‘above suspicion’ and must possess ‘pristine antecedents’ as they are endowed with the power to appoint high dignitaries, including high court judges and the chief minister.

When Yadav’s senior counsel, M.N. Krishnamani, not only opposed the issue of notice by the Supreme Court but advised Yadav not to respond to it in view of his so-called immunity under the constitution, the Supreme Court neither insisted on a response from him nor recalled its notice.

This was in contrast to the swift withdrawal of the notice issued to the then Arunachal Pradesh governor Jyoti Prasad Rajkhowa by the Supreme Court when his reports to the Centre recommending president’s rule in the state were challenged last year.

Attorney general Mukul Rohatgi pointed out to the constitution bench hearing the case that the governor enjoys immunity under Article 361 and therefore cannot be issued a notice. The Supreme Court accepted his contention, perhaps because it believed that the facts in the Madhya Pradesh case warranted issue of notice to the governor, whereas in the case of Arunachal, they didn’t.

In the Madhya Pradesh case, the petitioners’ lawyers, senior counsels Kapil Sibal and Vivek Tankha, urged the Supreme Court to lay down the “guidelines for removal/withdrawal of pleasure of the president in cases of physical or mental disability, acts of corruption or moral turpitude or behaviour unbecoming of a governor”.

While the Madhya Pradesh case, still pending in the Supreme Court, may perhaps abate in view of Yadav’s demise, the Madhya Pradesh high court’s reasoning on extending the constitutional immunity to the governor requires reconsideration by the Supreme Court.

It was argued before the high court that Article 361 immunity cannot be extended to acts which are not in furtherance of powers and duties of the office of the governor. The state government took the stand that there was no impediment or bar on the registration of an FIR by the police against the governor on a cognisable offence which has been committed dehors the powers and duties of the governor.

The central government and the attorney general took the stand before the high court that the act of registration of an FIR against the governor does not offend or violate Article 361(2) of the constitution; at the same time, they held the view that immunity conferred on the governor is absolute so long as he holds office.

The high court held that the expression “whatsoever” following the expression “criminal proceedings” in clause (2) of Article 361, means that it would attract the submission of report by a police officer to the magistrate, empowered to take cognisance of the offence, alleged, and thus include the FIR in its ambit.

The high court, however, made it clear that the privilege in clause (2) and clause (3) of Article 361 is confined to the term of office of the governor and there would be no such bar to proceed, soon after the incumbent ceases to hold the office either by efflux of time or because of resignation or removal.

The high court reasoned that Article 361(2) envisages absolute immunity, because it seeks to insulate the head of a state from any possible exposure to malicious publicity of his involvement in any offence instituted during his term of office.

Questions over resignation

The central government, according to reports, asked Shanmuganathan to resign rather than withdraw its support under Article 156(1) of the constitution.

In B.P.Singhal, the Supreme Court’s five-judge constitution bench held in 2010 that the Centre can remove the governor from office for valid reasons, without giving them a notice to explain. But valid reasons, other than the ones that her views are at variance with that of the Centre or that the Centre lost confidence in her, must exist and are judicially reviewable, the court had held.

The question of whether the Centre can exercise ‘extra-constitutional’ means to get rid of governors by asking them to resign is before another constitution bench of the  Supreme Court.

The case Aziz Qureshi v Union of India, which raised this question and was heard partly by a five-judge constitution bench last year, is yet to be heard again as two judges who were on the bench retired in the mean time, before the hearings could be completed. In this case, the former Mizoram governor Aziz Qureshi had challenged the Centre’s attempts to force him to resign during his earlier stint as the governor of Uttarakhand. Ultimately, Qureshi was sacked as the governor of Mizoram in March 2015. The former lieutenant governor of Puducherry, Virendra Kataria, who was sacked by the Centre in July 2014, has also challenged his removal in this case.

The Centre, therefore, has to explain why it did not follow the Supreme Court’s dictum in B.P.Singhal by sacking Shanmuganathan, on the basis of the prima facie evidence which surfaced, and facilitate police investigation against him promptly.

It also needs to explain to the  Supreme Court, while another constitution bench rehears Aziz Qureshi, why it did not swiftly sack Shanmuganathan but chose to get rid of him through a resignation, which is apparently forced.

The Centre may also have to explain to the court why it sacked Qureshi and Kataria, even though grounds warranting such removal did not exist in their cases. The government’s double standards in its treatment of governors of different political persuasions would then stand exposed.

Liked the story? We’re a non-profit. Make a donation and help pay for our journalism.
  • Bhogendra Thakur

    There is no point signalling him out. We are a dead society. We ruled by such thugs and the judiciary is in deep slumber.

    • R Joseph

      Mr N D Tiwari had done something similar when he was a Governor and he has now been welcomed into the BJP.

  • Bhogendra Thakur

    There is no point signalling him out. We are a dead society. We ruled by such thugs and the judiciary is in deep slumber.