Showing posts with label Article 361. Show all posts
Showing posts with label Article 361. Show all posts

Wednesday, July 30, 2014



By Amba Charan Vashishth

On July 10 last the Indian Express carried a news item with a queer heading: "Governor can't be tried in graft case: Sheila to HC". In other words, committing an act defined as a crime under the Prevention of Corruption Act is not a crime for His/Her Highness the Governor of a State.
As per media reports, the BJP leader Vijender Gupta had filed a complaint alleging that Dikshit administration in Delhi misused public funds to the tune of Rs 22.56 crore in an advertisement campaign ahead of the 2008 assembly polls. A special judge had on August 31 last year, ordered registration of an FIR against Mrs. Sheila Dikshit, the then Delhi Chief Minister and others for offences including criminal breach of trust (section 409 IPC), criminal misappropriation of public funds and criminal misconduct under provisions of the Prevention of Corruption Act. Thereafter, the then Dikshit government moved the high court against the trial court order which was stayed. 

 After Congress lost power in Delhi, the successor AAP government in February 2014 moved the high court seeking to take back the appeal filed by then Congress government headed by Mrs. Dikshit stating that she will have to defend herself as she is no more the CM and the government lacked the "locus standi" to fight for her. Consequently, Mrs. Dikshit moved the high court opposing the plea of the Kejriwal government and also sought her impleadment in the matter.

Thereafter, on separate complaints filed by Mr. Gupta and RTI activist Vivek Garg the high court on February 26 said that Dikshit will have to defend herself in the graft case.  Mrs. Sheila Dikshit sought quashing of the trial court order to lodge FIR against her in a graft case, contending in the Delhi high court that such proceedings cannot be continued against a governor. Advocate M Pracha, appearing for her contended that as she is Kerala governor as per Article 361 (2) of the Constitution "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". 

The Hon'ble High Court will certainly come out with a considered judgement in the course of time. Maybe, the case ultimately lands up in the Supreme Court as Mrs. Dikshit has raised a very vital constitutional point. This also triggers a very important point for academic discussion and interest.
One cannot fail to note that in the instant case the "criminal proceedings whatsoever" stood already instituted against her much before she was nominated a governor.
Article 361(1) states that a governor "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". In the instant case Mrs. Dikshit is not being made "answerable…..for the exercise and performance of the powers and duties of his (her) office" as governor. The alleged crime was committed when Mrs. Dikshit was a chief minister and not a governor. A court had ordered registration of a case against her which precedes her appointment as a governor.
When the Constitution was adopted the framers presumed that presidents and governors would be gentlemen of eminence, above board possessing high standards of ethics and morality. They could never think even for a while that persons with a history of crime would one day be appointed to these exalted constitutional posts. They could never anticipate that one day the provisions of the Constitution would be exploited as a shield to seek immunity from prosecution and punishment for a person who committed a crime before his/her appointment as governor.
While taking note of the provisions of Article 362, one should not simultaneously fail to make a distinction between the office of the President and that of the governor — the former an elective office and the latter, a purely nominative one as a political or administrative favour.

On the eve of the Election Commission having indicated its intention to announce the schedule of elections to Lok Sabha the next day, the Congress government of Dr. Manmohan Singh nominated/appointed Mrs. Sheila Dikshit as the governor of Kerala late on the 4th March evening. At the time of making this appointment the then Union government was very well aware of the fact that a court had ordered registration of a criminal case under anti-corruption law against her. Congress government action obviously raises questions of propriety and ethics on the appointment of such a person to the constitutional office of a governor. It is ironical that in a case similar in nature to that of Mrs. Sheila Dikshit, the Manmohan government would have refused to issue appointment letter to a petty clerk or an officer selected by the Union Public Service Commission through a legal process. Does it then not boil down to the fact that Mrs. Sheila Dikshit's appointment as a governor was motivated by the consideration of Congress government to protect her from being prosecuted for indulging in an act which under the provision of the Prevention of Corruption Act constituted a crime? 

Published the the weekly UDAY INDIA Aug.  2014