Rosaiah’s prosecution divides experts

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What the constitution says: Article 361 - Clause 2
(1) The President, or the Governor or Rajpramukh 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: provided 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: and provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the President of India or the government of a state

(2) 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

(3) No process for the arrest or imprisonment of the President, or the Governor of a state, shall issue from any court during his term of office

(4) Any civil proceedings in which relief is claimed against the President, or the Governor of a state, shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President, or as Governor of such state, until the expiration of two months after notice in writing has been delivered to the President or Governor, as the case may be, or left at his office stating the nature of the proceedings, the cause of action, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims.

Legal proceedings unconstitutional
S. Ramachandra Rao, Senior Advocate AP High Court
The Constitution of India, in Article 361- Clause 2, provides total immunity to Governors and the President of India. No criminal proceedings shall be initiated or continued against the Governor of a state in any court during the term of his/her office. Similarly, no civil proceedings can be initiated or continued during the term of his/her office. Hence, in my view, the summons issued by the ACB court against Governor of Tamil Nadu K. Rosaiah is not constitutionally valid, as there is a total immunity from criminal prosecution or criminal liability for the Governor as long as he holds the office.

Even if there is a criminal proceeding against him before he takes the office, it cannot be continued. The Governor enjoys total immunity from criminal liability. Since Article 361 refers to “any court”, it means that the court where the criminal proceedings are initiated need not be in Tamil Nadu alone. No court in India can initiate criminal proceedings against a Governor during his or her term of office. Hence, it is difficult to understand the constitutionality and legality of the ACB court in Andhra Pradesh in summoning a Governor as an accused in a criminal case.

Rosaiah is not above law and has no immunity
K. Ramakrishna Reddy, Senior Advocate, AP High Court
It has been established that all the executive actions of the President and a Governor can be judicially scrutinised, and that there is no bar or immunity of judicial review under the Constitution. The immunity under Article 361 is in respect of the performance of powers and duties of the office and any act done or purported to be done by them as the Presi-dent or the Governor.

But in the current case, the charge against Mr Rosaiah is that during his term in office as the Chief Minister of AP, he was instrumental in the de-notification and transfer of valuable government lands in favour of the erstwhile owners, causing a considerable loss to the state exchequer. Hence, he allegedly committed an offence in a criminal breach of trust under Section 409 of the IPC by misusing the powers and functions of a Chief Minister. During the inquiry of the case, if the allegations are found to be true, Mr Rosaiah is liable for prosecution like any other citizen. Therefore, there is no immunity for his alleged actions of de-notifying valuable government lands as the Chief Minister. Hence, his current position as the Governor of Tamil Nadu does not come in the way of issuing summons and initiating proceedings for the prosecution of Mr Rosaiah.