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Published : June 10, 2010 | Author : pushkarthakur
Category : Constitutional Law | Total Views : 8939 | Unrated

Pushkar Thakur. 3rd Year Student. W.B.N.U.J.S Kolkata,West Bengal

The draft topic pertains to “why does the constitution provide the executive with civil and criminal immunities. And whether if it is necessary in a republic.”

Before going any deeper into the argument, we have to first understand what is really meant by the term “ Executive” with respect to the hon’ble Constitution and what practical connotation is applied of it in the society.

The Executive is what is comprised of the President, the Vice President, Attorney General and the council of ministers. ‘Rajapramukh’ was also a part of the executive , though removed by the 7th amendment.[1] Understanding the concept of “Executive Power”, it may not be possible to frame an exhaustive definition of what executive function means and implies. Simply put, the powers of the executive connote the residue of governmental functions that remain after legislative and judicial functions are taken away[2] subject to the provisions of the constitution or any law. The executive function consists of formulation of policy as well as carrying it into execution, the initiation of legislation, the maintenance of order,[3]the promotion and implementation of welfare issues of economy and social issues, the direction of foreign policy , carrying or supervising of the general administration of the state.[4]It includes political and diplomatic activities[5], the recognition of a “Ruler” for the purposes of article 366(22).[6]

President is the head of the executive , assisted by officers( ministers , Vice President etc. ). The President of India is elected by the Parliament and State Legislative Assemblies, and not directly by the people. The President is the Head of the State, and all the business of the Executive and Laws enacted by the Parliament are in his/her name. However, these powers are only nominal, and the President must act only according to the advice of the Minister and the Council of Ministers.[7]
The Prime Minister and the Council of Ministers enjoy their offices only as long as they enjoy a majority support in the Lok Sabha, the lower house of the Parliament, which consists of members directly elected by the people. The ministers are answerable to both the houses of the Parliament. Also, the Ministers must themselves be elected members of either house of the Parliament. Thus, the Parliament exercises control over the Executive.

Ministers are basically officers subordinate to the president as the case may be.[8] Hence , they are also public servant within the meaning of section 21.[9] It was held by the Supreme Court in a few precedents that there are certain powers which are vested by the constitution in the President, apart from the executive power of the Union. Hence , these powers cannot be delegated by the President to any other person or authority, under article 53(1)[10]
Another thing to be kept in mind and noted is that the actions of the president as well as the judiciary with regards to actions should be “In accordance with the Constitution”. It is these words which give the court an avenue for judicial review of the executive action, whenever any exercise of such power is not in accordance with the mandatory.[11]

Articles 105 and 194 of the Constitution of India deal with the powers and immunities of Parliament and it members, and of State legislatures and their members. As sub clause(3) both of these articles refer to the privileges of the British House of Commons at the commencement of the Constitution. [12]

Chapter -1 Executive Immunity in Parliamentary Proceedings.
“The game of democracy is played by political parties. The quality of democracy in any country depends on the character and conduct of the political parties.”[13]
The members of parliament are also covered under the executive as it has already been mentioned in the draft. The phraseology of clause (2) of Article 105 makes a Member of Parliament immune from any liability that may arise from any court proceedings in respect of "anything said", that is, "any speech made" or "any vote given" by him in Parliament or any committee thereof. The giving of vote under the inducement of a bribe as opposed to acting independently and on merits cannot, on any principle of interpretation, be read into clause (2) for such a legislator by taking a bribe himself loses the protective shield of the provision. India is a federal constitution with unitary features.[14] Though in making a report under article 356, the governor will be justified in exercising his discretion .[15]

The immunity under clause (2) of Article 105 from criminal prosecution is available to a Member of Parliament only from any liability arising out of "anything said" or "any vote given" inside Parliament or in any committee thereof. The clause therefore has absolutely no application to any act of a Member constituting an offence of bribery outside Parliament as to bar his liability for criminal prosecution. The Constitution Bench in Tej Kiran Jain v. N. Sanjiva Reddy[16] interpreting the expression "in Parliament" appearing in clause (2) of Article 105 as "during the sitting of Parliament" and "in the course of the business of Parliament", lends support.

Besides, the Constitution Bench in Jatish Chandra Ghosh (Dr) v. Hari Sadhan Mukherjee[17] has held that the immunity available to a speech made by a Member inside the legislative chamber of an Assembly under clause (2) of Article 194 [equivalent of Article 105(21)] shall not be available in regard to the same speech when it was got published by a legislator "outside" the four walls of the Legislative Assembly in a local journal.

It, therefore, follows that the majority in the case under comment could not have extended the immunity to acts of bribery and criminal conspiracy committed by the bribe-giving and bribe-taking Members of Parliament "outside" Parliament by creating an illusory "nexus" with the subsequent act of casting votes by bribe-taking Members inside Parliament subsequently.

Chapter -2 Case Laws On Executive Immunity
“ There is great and clear distinction between acts done in the exercise of what are usually termed as sovereign powers, and acts done in the conduct of undertaking which might be carried on by private individuals without having such power delegated to them.... When an act is done or contract is entered into, in the exercise of powers usually called sovereign powers, by which we mean powers which cannot be lawfully exercised except by a sovereign, or a private individual delegated by a sovereign to exercise them, no action will lie."[18]
To understand more into how the provisions are used , so that it is possible for taking a view point on if it is actually necessary in a republic, this chapter has been devoted to the precedents dealing with the same.

In the Privy Purse case[19] the Court was to gauge the step of the President de-recognising all the Rulers under Article 366(22) of the hon’ble Constitution. It was argued on behalf of the Union of India that the action of the President was in exercise of his sovereign power and was not amenable to judicial scrutiny. The Supreme Court disregarded the contention and maintained that there is nothing like sovereign power under our Constitution in the matter of relationship between the executive and the citizens. It held that the functions of the President stemmed from the Constitution and not from the British Crown. Hedge, J. observed

"Our Constitution recognises only three powers viz. the legislative power, the judicial power and the executive power. It does not recognise any other power. In our country the executive cannot exercise any sovereignty over the citizens. The executive possesses no sovereignty.... There is no analogy between our President and the British Crown. The President is a creature of the Constitution. He can only act in accordance with the Constitution." [20]
The Court failed to see how the Government of India can consider itself a superior power in its relationship with the citizens of this country. However, despite such categorical and socially relevant observations, there does seem to exist areas of doubt where the ghost of 'sovereign power' and 'sovereign immunity' of the State still casts its shadow. It is a matter of deep regret that even after 1971, the courts in India continue to accept the distinction between 'sovereign' and 'trading' activities of the State[21] and have on several occasions absolved the State of its liability for tort committed in the course of the former[22] following Kasturi Lal case[23] decided in 1965.

In Kasturi Lal case[24] a police officer misappropriated the gold deposited in police Malkhana after seizing it from the plaintiff on suspicion. Later he absconded. It was found that the police officers were negligent as they failed to observe the provisions of the U.P. Police Regulations in taking care of the gold seized. The Supreme Court held that since the negligence of the police officers was in the exercise of statutory powers, which could be characterised as sovereign powers, the State was not vicariously liable for the same. The Court relied on Sir Peacock's observations in P & O case[25] to hold that if an activity could not be performed by a private individual, such activity could be termed as sovereign activity and the State is not vicariously liable for any tort arising from the exercise of such activity.

Article 300(1) of the Constitution provides, inter alia, that the State may sue or be sued in relation to its affairs in cases like those in which the Dominion of India or a corresponding Province or an Indian State might have sued or been sued if the Constitution had not been enacted. Thus Article 300(1) relates back through successive Government of India Acts to the legal position immediately prior to the Act of 1858. In each case, therefore, the question arises whether a suit would lie against East India Company had the case arisen prior to 1858. If it did, the State can be sued, while if it did not, the State is not liable for the tort committed.[26]
In parliamentary affairs also, the question of immunity has been raised many a times. The Constitution Bench in Jatish Chandra Ghosh (Dr) v. Hari Sadhan Mukherjee[27] has held that the immunity available to a speech made by a Member inside the legislative chamber of an Assembly under clause (2) of Article 194 [equivalent of Article 105(21)] shall not be available in regard to the same speech when it was got published by a legislator "outside" the four walls of the Legislative Assembly in a local journal

In a sense ,rule of law is a feature of the Indian Constitution.[28] The executive has no arbitrary or discretionary powers in relation to the subjects. All its dealings with the citizens are governed by the law of the land and are subject to the jurisdiction of the courts. An act of state cannot be pleaded against the subject , not even against an alien who being subject of a friendly state is resident in British territory.[29] An act of state may, however, is pleaded in respect of foreign dealings or dealings in relation to other states.[30]

Conclusion for this draft, is basically the answer to the second part of the draft question as to whether it is actually necessary for the Executive to be given Civil and Criminal immunity.

A constitution has a multi fold responsibility on its head. It is realistic to consider the fact that the misgivings of the provisions may be used negatively by the executive itself. But that does not mean that the provisions are totally unnecessary. Taking examples from the draft itself , if we notice that the immunity of the parliament members is indeed a necessary provision as this freedom is required for the members for the exercise of their powers in the most effective way. The point to be noted here is also that the reason d’être for such provisions have been made keeping in mind, the diversity of socio-economical-political condition in India.

The above mentioned reason can also be attributed to the provisions being misused by the Executive. This is evident from the judgements cited by me , but also the fact to be noted here is that the Judiciary is acting as a back bone for the Constitution on this. Because of the judiciary only, it is possible for the system to function with such provisions which help in achieving what the provisions are actually aimed for. And also the fact that in a country like ours, flaws with pros are an inevitable fact. And thus , just because of instances of misuse of such powers by the Executive , it is not practical to say that such provision is not required in the Constitution.

Thus , the researcher with his work on executive immunity believes that such provisions for the Civil and Criminal immunity of the Executive are indeed necessary for the system to run.

1. P.M. Bakshi , The Constitution Of India, Universal Law Publishing Co. ltd., New Delhi, 6th edition,2003
2. C.L. Anand ,Constitutional law and history of Government of India, Universal Law publishing house , New Delhi, 8th edition, 2008
3. Dr. Subhash Kashyap , Constitution of India, universal law publishing house, New Delhi,2006
4. Dr. D.D. Basu , Shorter Constitution of India Wadhwa and company,Nagpur,13th edition ,2006
5. V.R. Krishna Aiyer, A Constitutional Miscellany ,Eastern Book Company, Lucknow,1986
6. J.K. Mittal, Indian Legal and Constitutional History, Allahabad law agency, Allahabad,13th edition , 2002
7. Jayapalan. N., Constitutional History of India, Atlantic Publishers,7th edition, 1998
8. lawyer/articles/9808a1.htm" target="_blank">http://www.ebc-india.com/lawyer/articles/9808a1.htmas seen on 30/03/10

[1] P.M. Bakshi , The Constitution Of India, Universal Law Publishing Co. ltd., New Delhi, 6th edition,2003, pp-298
[2] Jayanti Lal Shodhan v. Rana AIR 1964 SC 648
[3] Dr. D.D. Basu , Shorter Constitution of India Wadhwa and company,Nagpur,13th edition ,2006,pp-472
[4] Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225
[5] Satwant Singh Sawhney v. Asst. Passport Officer AIR 1967 SC 836
[6] Madhava Rao v. Union of India AIR 1971 SC 530
[7] Jayapalan. N., Constitutional History of India, Atlantic Publishers,7th edition, 1998,pp-344
[8] Supra note.2
[9] India Penal Code
[10] State of UP v. Babu Ram Upadhyay AIR 1961 SC 751
[11] Rao UNR v. Indira Gandhi AIR 1971
[12] Section -105 of the hon’ble Constitution - (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.
(2) No Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution.
(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of parliament or any committee thereof as they apply in relation to members of parliament.
Section -194 of the hon’ble Constitution- Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State
[13] Dr. Subhash Kashyap , Constitution of India, universal law publishing house, New Delhi,2006 ,pp 81
[14] J.K. Mittal, Indian Legal and Constitutional History, Allahabad law agency, Allahabad,13th edition , 2002 ,pp141
[15] V.R. Krishna Aiyer, A Constitutional Miscellany ,Eastern Book Company, Lucknow,1986,pp-12
[16] (1970) 2 SCC 272
[17] (1961) 3 SCR 486
[18] Views of honourable Balwant Malik, senior advocate from the article http://www.ebc-india.com/lawyer/articles/9808a1.htm as seen on 30/03/10
[19] Madhav Rao Scindia v. Union of India, (1971) 1 SCC 85
[20] Ibid.
[21] Mohd. Shafi Suleman Kazi v. Dr Vilas Dhondu Kavishwar, AIR 1982 Bom 27
[22] Iqbal Kaur v. Chief of Army Staff, AIR 1978 All 417
[23] Kasturi Lal Ralia Ram v. Union of India, AIR 1965 SC 1039
[24] Ibid.
[25] (1861) 5 Bombay HCR
[26] Hon’ble Constitution of India
[27] (1961) 3 SCR 486
[28] C.L. Anand ,Constitutional law and history of Government of India, Universal Law publishing house , New Delhi, 8th edition, 2008, pp-777
[29] Ibid.
[30] Nabab of Carnatic v. East India Company

Authors contact info - articles The  author can be reached at: pushkarthakur@legalserviceindia.com

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