Editorial 1 : Is immunity for the President and Governors absolute?
Context
A three-judge Bench headed by the Chief Justice of India D.Y. Chandrachud has impleaded the Union government and sought assistance from the Attorney General of India to decide if a “blanket” immunity granted under Article 361 to the President and Governors, while in office, from criminal proceedings undermines fairness, constitutional morality and violates fundamental rights to equal protection of the law and fair trial.
What is the case?
- The question came up in a petition filed by a contractual woman employee with the Raj Bhavan who has accused West Bengal Governor C.V. Ananda Bose of sexual harassment and molestation.
- She cited that the police have treated her complaint against the constitutional authority in a “cavalier manner” citing the immunity clause.
- She said the only option left to her is to wait for the Governor to demit office for the investigation to commence on her complaint of gender violence.
- She has urged the court to mandate the State of West Bengal through its police machinery to carry out an investigation.
- The employee has also asked the court to frame guidelines and qualify the extent of the immunity.
Do Governors have immunity?
- Article 361 (1) provides that the President and Governors are not answerable to any court for acts done in exercise and performance of their powers and duties.
- However the first proviso to Article 361(1) allows the conduct of the President to be reviewed by any court, tribunal or body designated by either House of Parliament for the investigation of a charge under Article 61 (impeachment for violation of the Constitution).
- The second proviso to Article 361(1) holds that the immunity cannot stop a person from suing the Centre or State concerned.
- The clause in question before the Supreme Court in the current case is clause (2) of Article 361 which mandates that “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 apex court has decided to interpret clause (2) of Article 361 to determine when exactly could criminal proceedings be instituted against a President or Governor.
- In short, the court has decided to rattle the protective cover of immunity to see if it is “unfettered or unbridled”.
- Interestingly, the Constituent Assembly debates on Article 361 (Draft Article 302) in September 1949 show that a Member had indeed found the language of clause (2) vague. The discussion concerned the phrase “during the term of his office” in Article 361(2).
Not an absolute immunity!
- The immunity under Article 361 cannot impair the police’s powers to investigate the offence or even name the perpetrator in the complaint/FIR.
- No part of the powers of the Governor provide for him to sexually abuse employees, the employee said.
- The Supreme Court, in Rameshwar Prasad vs. Union of India, had interpreted that ‘civil immunity’ under Article 361(4) did not take away the power of citizens to challenge the actions of the President or Governors on the ground of ‘malafides’.
Conclusion
An analogy could be drawn to interpret criminal immunity the same way. The petition referred to a Madhya Pradesh High Court ruling in Ram Naresh vs State of Madhya Pradesh, which had held that the immunity would not impair the police’s powers to investigate an offence, which included recording the Governor’s statement.
Editorial 2 : Budget 2024 — long on intent, short on details
Context
The policy slant highlights good intentions, but the ways and the means to accomplish the ambitious goals set out are hazy.
The Speech
- The short Budget speech by the Union Finance Minister is marked by clarity on three aspects.
- First, the intentions and vision for Vikisit Bharat@2047 are spelt out through the nine priority areas, a long-term vision, to which we expect that subsequent Budgets would adhere, to accomplish these goals.
- Second, there is an explicit recognition of the problem of unemployment in the economy. Addressing this has been a challenge and the Budget devotes considerable space in listing out initiatives towards generating employment.
- Third, the compulsions of a coalition government surface in parts, but are hidden in some of the specificities.
- On the face of it, the policy slant reveals good intentions, but the ways and the means to accomplish the ambitious goals set out are not divulged, casting a shadow on the possibility of realising the targets set.
A signal of continuity
- The fiscal arithmetic and the macro-policy stance in the Budget signal continuity and a carrying on with fiscal consolidation efforts.
- The overall fiscal deficit has been lowered to 4.9% compared to 5.1% targeted in the interim Budget.
- A large part of the surplus received from the Reserve Bank of India has been used to buttress fiscal prudence.
- The anticipated reiteration of the reduction in the fiscal deficit to below 4.5% of GDP in FY2026 is welcome.
- The new medium-term fiscal consolidation path has been linked to a reduction in the debt/GDP ratio instead of continued compression of the fiscal deficit/GDP ratio.
- This will allow the government flexibility to chart an appropriate fiscal course that builds in higher capital spending as well as support to meeting climate goals in an uncertain global environment.
- The size of the Budget has gone up only marginally. This also means that the overall borrowing programme of the government is almost unchanged — in fact, it has come down marginally though the cut in borrowings is smaller than what could have been possible with the buoyant revenue collections.
- While there has been a slight increase in overall expenditure, capital expenditure remains more or less unchanged.
Discomforting trends
- There are two discomforting trends on the expenditure side.
- First, the Budget estimates for 2024-25 show only marginal increase in allocation in most of the items of expenditure compared to that of 2023-24. In the case of commerce, industry and energy, we find a decline in Budget estimates for 2024-25.
- Second, in many items of expenditure, the revised estimates for 2023-24 are lower than the Budget estimates for the same year. Social welfare and scientific departments are notable in this context.
- Effective capital expenditure, which is capital expenditure plus the grant in aid for creation of capital assets, have come down when we compare revised estimates and provisional actuals for 2023-24.
- The decline in revised estimates compared to Budget estimates is an indication of the lack of capacity of the government to spend, which is likely to undermine the expected multiplier effects of such expenditures.
- Further, the same levels of capital expenditure imply that the government would bank more on private investments, as indicated in the Economic Survey, which has not yet registered a significant increase in recent years.
Consumption and employment
- The Budget relies on two measures to bolster demand and increase private consumption.
- It takes the route of tinkering with the new income-tax regime to leave slightly more disposable incomes for a section of taxpayers, which is expected to stimulate demand.
- Given the growth in indirect tax collections, there was more room for income-tax reliefs, which could have been useful to not only stimulate demand but also increase dwindling household savings.
- Second, the Budget expects employment growth to take place, imparting more incomes, and, hence, higher demand in the economy.
- The internship scheme, the direct thrust on channelling funds to first-time employees with commensurate benefits to companies to incentivise a hiring of more people and providing salary top up for first time employed are unlikely to create more jobs as they do not address the questions of social aspirations and technological changes which directly impinge labour market outcomes.
- Employment growth is also expected to take place with the revival of the Micro, Small and Medium Enterprises (MSME) sector through the credit route with a guarantee scheme being launched, besides asking banks to have their own models for lending that is not linked with collateral.
- Assistance to States such as Andhra Pradesh, Bihar, Odisha and Jharkhand is also expected to give an indirect push to investment and employment along with the thrust to housing in urban and rural areas.
Way forward
- Neither was there any mention of the Railways, PLI Scheme, Gati Sakthi and the Census. The list of omissions could be longer, but a lack of clear initiatives towards the education and health sectors to tap demographic dividend might not augur well with the vision of 2047.
- Equally important is to strike a balance between cities and rural economy and to make a distinction between jobs and internships. With the macroeconomy well poised at the moment, some bold steps and details of the journey to 2047 could have been outlined.
