Subject: Polity

Why in the News?

• The Supreme Court has agreed to hear a plea seeking to redefine the constitutional immunity of state Governors.
  • Article 361 of the Constitution shields the President and Governors from criminal prosecution and judicial scrutiny.
  • The Supreme Court will interpret whether the immunity includes the registration of an FIR, initiation of a preliminary inquiry, or a magistrate taking cognisance of an offence.

Origins of Governor’s Immunity

• The concept of immunity is based on the Latin maxim “rex non potest peccare” (the king can do no wrong), rooted in English legal traditions.
• During the Constituent Assembly debates in 1949, member H. V. Kamath questioned whether immunity meant no proceedings could be instituted against the President or Governor during their term or only while they were in office.
  • The article was adopted without further debate on criminal immunity.

What are immunities under Article 361?

• According to Article 361(1), the President or a Governor is not answerable to any court for the exercise of their powers and duties.
• Article 361(2) ensures that NO criminal proceedings can be initiated or continued against the President or Governor during their term.
• Article 361(3) prohibits the arrest or imprisonment of the President or Governor while they are in office.
• Article 361(4) states that civil lawsuits for personal acts against the President or Governor cannot be initiated during their term and can only proceed two months after a written notice is given post-term.

Judicial Interpretations of Article 361:

• Dr SC Barat and Anr vs. Hari Vinayak Pataskar Case (1961): Distinguished between the Governor’s official and personal actions. While official actions have complete immunity, civil proceedings for personal acts can proceed with prior notice.
• Rameshwar Prasad vs. Union of India Case (2006): The Supreme Court recognized “complete immunity” for constitutional actions under Article 361(1), but allowed judicial review for actions taken with malicious intent.
• Vyapam Scam Case (2015): The Madhya Pradesh High Court ruled that Governor Ram Naresh Yadav had absolute protection under Article 361(2), preventing his name from being included in the investigation to avoid undue legal harassment.
• State of UP vs. Kalyan Singh Case (2017): The Supreme Court upheld that Kalyan Singh, while serving as Governor of Rajasthan, was immune under Article 361. Legal proceedings related to the Babri Masjid demolition were to resume after his term.
• Telangana High Court Judgment (2024): Observed that the Constitution does not explicitly or implicitly bar judicial review of actions taken by a Governor, and stated that Article 361 immunity is personal and does not exclude judicial review.

Case for Revisiting Immunity

The debate on executive immunity is ongoing in other countries as well.

• The US Supreme Court recently decided that former President Donald Trump is entitled to “absolute immunity” from criminal prosecution for official acts but not for unofficial or personal acts.
• In India, the discussion is viewed within the larger context of the tension between Governors and opposition-ruled state governments.
• The Supreme Court has noted instances where Governors acted with political motives.

Why in the News?

The Bombay High Court has cancelled the Maharashtra government’s new rule that allowed private schools within 1 kilometer of government or government-aided schools to avoid reserving 25% of their seats for students from weaker sections and disadvantaged groups.

Right to Education (RTE) Act: Overview

• The Right to Education (RTE) Act, 2009 ensures free and compulsory education as fundamental right under Article 21A of the Indian Constitution.
• It mandates that every child has the right to full-time elementary education of satisfactory and equitable quality in a formal school that meets certain essential norms and standards.
• Key Provisions:
  • The RTE Act provides for free and compulsory education for all children between 6 and 14 years.
  • Schools must be available within a prescribed distance from the child’s residence to ensure accessibility.
  • The Act ensures the provision of adequate teachers and the establishment of standards for their training and quality.
• Teacher Qualification: The teacher must pass the Teacher Eligibility Test (TET), which is administered by the respective government authority. The National Council for Teacher Education (NCTE) has established the minimum qualifications required for a person to be eligible for appointment as a teacher for classes I to VIII.
• The RTE Act does NOT apply to Minority institutions.

Section 12(1) (C) of the RTE Act:

• Section 12(1) (C) requires private unaided and specified category schools to reserve at least 25% seats for children from economically weaker sections and disadvantaged groups.
• This provision aims to promote social inclusion and ensure that children from all backgrounds have access to quality education.
• The government reimburses schools for the expenses incurred for admitting these children, based on per-child expenditure incurred by the state.
• Children from economically weaker sections and disadvantaged groups benefit from this Section as it provides them access to private schooling.
• This section aims to contest education apartheid and bring parity and equality of opportunity for all children.

Details of the Exemption Rule in Maharashtra

• The notification stated that private unaided schools within one kilometer of a government or government-aided school would not need to reserve 25% of seats for socio-economically backward students.
• Students in these areas would first be considered for admission to nearby government or government-aided schools.
• The exemption also applied to future private schools established within a one-kilometer radius of government or government-aided schools.
• If no such schools existed in the vicinity, private schools would be identified for RTE admissions.

Similar Exemptions in Other States

• Maharashtra joined Karnataka and Kerala in implementing this regime to exempt private schools from RTE admissions.
• Karnataka introduced the rule in December 2018, referencing Kerala’s rules introduced in 2011.
• In Kerala, the fee concession is available to RTE quota students only if there are no government or aided schools within one kilometer for Class 1 students.

Reasons for Introducing Exemptions

• Karnataka’s Law Minister stated in 2018 that the primary intention of RTE is to provide education to all classes of students.
• Allowing parents to admit children to private schools despite nearby government schools resulted in a drop in enrollment ratios in government schools.

• Private schools and teachers’ organizations highlighted that state governments often failed to reimburse fees for students admitted through the RTE quota.
  • Section 12(2) of the RTE Act binds state governments to reimburse expenses incurred by schools per child or the fee amount, whichever is less.
  • In Maharashtra, the Maharashtra English School Trustees Association (MESTA) threatened to boycott RTE admissions last December due to pending reimbursements of Rs 1,800 crore.

Why in the News?

The Government of India has decided to observe 25th June every year as ‘Samvidhaan Hatya Diwas.’ 

What was the Emergency?

• PM Indira Gandhi’s government used constitutional provisions to impose sweeping executive and legislative control.
• Opposition leaders were jailed, and fundamental rights, including freedom of speech and expression, were curtailed, leading to press censorship.
• The federal structure was effectively converted into a unitary one, with the Union controlling state governments.
• Parliament extended its term, made laws on state subjects, and extended the Union’s executive powers to the states.

Legal and Constitutional Sanction

• Article 352 allowed the President to proclaim an emergency if India’s security was threatened by war, external aggression, or armed rebellion.
• In 1975, “internal disturbance” was used as grounds for the Emergency, citing incitements against the police and armed forces.
• This was the only instance of emergency due to “internal disturbance,” later removed by the 44th Amendment in 1978.
  • Article 358 suspended limitations on Article 19 (“Right to freedom”).
  • Article 359 allowed the President to suspend the right to court enforcement of rights during an emergency.

Political and Social Circumstances: A Timeline 

• In 1974, the Navnirman movement against corruption in Gujarat led to President’s Rule.
• Inspired by Navnirman, a student movement in Bihar, led by Jayaprakash Narayan (JP), aimed to cleanse the country of corruption and misgovernance.
• In May 1974, George Fernandes led a massive railway workers’ strike.
• On June 5, 1974, JP called for “Sampoorna Kranti” (total revolution).
• On June 12, 1975, Justice Jagmohanlal Sinha of the Allahabad High Court convicted Indira Gandhi of electoral malpractice.
• On June 25, 1975, President Fakhruddin Ali Ahmed signed the Proclamation of Emergency, cutting power to major newspapers and informing the Cabinet the next morning.

Impact on Opposition Leaders, Media, and Political Dissenters

• Almost all opposition leaders, including JP, were detained under the Maintenance of Internal Security Act (MISA).
• Newspapers faced pre-censorship, with UNI and PTI merged into a state-controlled agency, Samachar.
• More than 250 journalists were jailed, and The Indian Express resisted by printing blank spaces when stories were censored.
• Sanjay Gandhi’s “five-point programme” included forced family planning and slum clearance, leading to forced sterilizations and violent clashes.

Legal Changes during the Emergency

• With opposition leaders in jail, Parliament passed amendments barring judicial review of the Emergency and securing the Prime Minister’s election.
• The 42nd Amendment expanded Union authority over states and gave Parliament unbridled power to amend the Constitution.
• In ADM Jabalpur vs. Shivkant Shukla (1976), the Supreme Court ruled that detention without trial was legal during an emergency, with Justice H.R. Khanna dissenting.

Lifting the Emergency and Aftermath

• Indira Gandhi lifted the Emergency in early 1977, leading to her defeat in the elections.
• The Janata Party emerged victorious, with Morarji Desai becoming India’s first non-Congress Prime Minister.
• The Janata government reversed many constitutional changes from the 42nd Amendment, made judicial review of emergency proclamations possible, and removed “internal disturbance” as grounds for emergency imposition.