By Aditi Tiwari-
INTRODUCTION
The question of immunity from prosecution as a general principle is enshrined in part XIX of our constitution, which sets out a sort of absolute immunity for the president or governor of a state from any criminal proceedings while in office, any civil liability in respect of anything done in personal capacity except with prior notice of two months, along with them not being able to be made answerable to any court for the performance of their duties in the exercise of the powers provided by the office. All these principles are consolidated under Article 361, in so far, the term of the office of the president or governor is concerned.
This whole concept can be said to be an extension of the doctrine of sovereign immunity, or a better term would be executive immunity, where the ‘sovereign’ or ‘head of state’ cannot be subjected to civil or criminal proceedings. Sovereign immunity as a concept is rather outdated since this meant complete shield from any civil liability for the government even with an actionable claim with all the evidence in cases of any act which was either sovereign or non-sovereign, increasing the scope and creating an absolute shield which was a power grossly misused.
Executive immunity, on the other hand, refers to immunity granted from personal liability for omissions while in the performance of executive functions. This is a concept recognized in a lot of jurisdictions in some way or the other with variations of course. The reasons for granting this sort of privilege in the eyes of law, despite us having an independent judiciary, is the fact that firstly, prima facie if the president (Indian example) is found guilty of any breach of law or could face a potential criminal proceeding, he would automatically be discharged from his duties by the way of impeachment process initiated in either house of the parliament, but passed with a special majority by that house, then sent to the other house for their investigation of the charges made against the president. If the second house also approves the charges, the President is deemed to have been impeached and then he can be tried in the court of law for any act committed by him or breach of law. This of course means the courts cannot impeach the president but only the parliament having this power. The other reason is that executive immunity removes any hindrance and gives freedom to perform the duties in the public interest. The office of the executive is the most important and must not be left vacant.
ANALYSIS
- Coming to the point of if there is immunity from prosecution of a former president, there is no such principle provided in the constitution which would be indicative of granting such immunity. The language of Article 361 suggests that immunity from legal proceedings is only granted for the term of the office of the President. This means that once the President has been impeached or has vacated the office, he can be tried for any such action he might have committed like an ordinary person in the eyes of law. Article 361 though being an exception to Article 14 which grants the Right to equality since certain privilege has to be granted to the executive for the smooth functioning of its office, does not mean that once the office has been vacated there would still be a bar from prosecution of a former president. The only words that have been used in the Article are ‘term of the office’. Not only that, but it also does not even completely bar civil proceedings for relief claimed against the president for acts done in a personal capacity, subject to a prior notice of two months.
Related case law with regards to the scope of Article 361 is the case of Rameshwar Prasad & Ors vs Union of India & Anr [1], where all of the provisions are dealt with at length. In this particular case, the court clarified that article 361 provides complete personal immunity to the president from even being made answerable to the court for the exercise and performance of their duties, indicating the term of the office only. Although it does not bar challenges that may be made to their actions, the court cannot issue directions to implead the president or assist them in the filing of an affidavit, except in case of the president’s own volition to do so.
In Union Carbide Corporation vs Union of India[2], the court dealt with Article 361(2), which specifically confers immunity against the President or governor against criminal proceedings again during the term of the office alone. The case further refers to the landmark case of Nixon v Fitzgerald [3]of the Supreme Court of the United States, which deals with the absolute immunity of government officials. In the case, the plaintiff sought civil damages from a former president, for actions allegedly taken in the official capacity during the tenure of his office. The court talked about the theoretical base for granting such an immunity, where the office of the president functionally mandates this privilege, “because of the singular importance of the President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.” Of course, under the law and constitution of the United States, the office of the president has a wide array of responsibilities in several areas which is not the case in India, where the President is acting mainly on the advice of the prime minister and his council of ministers, making him a ceremonial head. But for the decisions he makes even on such advice, he cannot be made answerable in a court of law although such actions can be subjected to judicial review and declared unconstitutional to ensure the system of checks and balances of power.
As far as the United States is concerned, the Supreme Court in Clinton v Jones [4]held that a president is liable for his civil acts committed before taking office, and the doctrine of separation of powers does not mandate that all private lawsuits shall be delayed till the President vacates the office and thus immunity extends only to acts in performance of particular functions of the office. This is in fact comparable to Article 361(4) which does not extend immunity to the president for acts committed in a personal capacity. But the idea is that a temporary immunity is not granted till the President leaves office. Not only that, when the case was heard at the district court, but Judge Wright also allowed the pre-trial discovery phase of then-President Bill Clinton to proceed without delay for the trial to start as soon as he left office.
CONCLUSION
Finally, although the question of a prosecution of a former president has never arisen in the form of any appeal or challenge to the court nor has it been properly examined by the apex court to give a clear decision on this matter. Till now, no criminal case has been lodged against a former president to punish them for their unconstitutional acts. It can be inferred through the series of supreme court decisions that have examined the ambit of Article 361 that any form of immunity is only granted while the President is in office, and this fact is something implied from the words of the Article in itself. The way the article is phrased clearly defines the ambit of immunity, which does not grant it for former presidents. As mentioned earlier, executive immunity is granted for certain reasons and when the president vacates the office there is no such basis left why he/she should be treated with an exclusive privilege and be granted differential treatment by the virtue of them holding a public office before. The idea seems preposterous and against the very nature of Article 14 which grants equality to every person equality before the law. On what grounds should a former president be immune from his/her criminal acts? The question itself boggles the mind posing no apparent answers.
[1] AIR 2006 SC 980
[2] 1992 AIR 248
[3] 457 U.S. 731 (1982)
[4] 520 U.S. 681 (1997)