Srimathi VenkatachariOn Aug 28, a Madras high court judge asked counsel for Tamil Nadu finance minister N Marie Wilson a question: “Are you the King of England?” The minister was facing criminal proceedings before a Judicial Magistrate in Puducherry. His counsel sought exemption from personal appearance, citing ministerial responsibilities and the assembly session. The judge was unimpressed. He pointed out that even former Prime Minister P V Narasimha Rao had appeared before a court while holding office, and questioned why a serving minister should expect different treatment merely because of his position. Then came the line: “Are you the King of England?”Instead of making the ‘king of England’ statement, the judge could have expressed the point in simpler language: “You are not above the law.”Instead, he reached for an image from another constitutional age. That makes the question more powerful. The British constitutional system historically placed the Crown at the apex of the legal order. The question reaches back into English constitutional history, particularly the maxim ‘rex non potest peccare’, meaning the King can do no wrong. The maxim did not mean that the monarch was incapable of making a moral or factual mistake. It described a constitutional and legal position in which the Crown occupied a distinct status and enjoyed immunities that ordinary subjects did not. Historically, the Crown stood apart from the ordinary conception of the defendant before the law.A minister in India occupies no such position. He is a constitutional functionary, not a sovereign. He exercises public power under a written Constitution, and that power is subject to constitutional and judicial limits. He enjoys no personal immunity from criminal proceedings merely because he holds ministerial office. That, in essence, is what the judge’s question conveyed: what is it about holding ministerial office that places you beyond the ordinary operation of the law?Independent India did not merely inherit the constitutional order of the British Crown. It replaced it. Article 14 guarantees equality before law. The Constitution does recognise specific immunities for certain high constitutional offices. Article 361, for instance, protects the President and governors from criminal proceedings during their term of office and imposes special conditions concerning certain civil proceedings. That is a constitutional immunity expressly created by the Constitution. No equivalent provision exists for ministers, nor should the position of ministers be confused with the institutional safeguards surrounding serving judges of Supreme Court and high courts.In K Veeraswami vs Union of India (1991), Supreme Court recognised procedural safeguards concerning criminal proceedings against serving judges. Judicial protocol also ordinarily protects judges from being unnecessarily required to appear personally in other courts. These safeguards serve an institutional purpose: protecting judicial independence and the functioning of the judiciary. They do not confer sovereign status. A minister has neither the constitutional immunity of the President or governor nor the institutional protection afforded to the judiciary. The reference sometimes made to Section 133 of the Code of Civil Procedure is of limited relevance. That provision concerns personal appearance in civil proceedings. It cannot be invoked as a general exemption from personal appearance in a criminal case.None of this means that an accused must invariably appear personally before a criminal court. The law has always recognised circumstances in which personal attendance may appropriately be dispensed with. Sections 205 and 317 of the old Code of Criminal Procedure enabled a magistrate, in appropriate circumstances, to permit an accused to appear through counsel. Bharatiya Nagarik Suraksha Sanhita, 2023, continues the principle in Section 228. The magistrate may excuse personal attendance for sufficient reason and may subsequently require the accused to appear personally. Supreme Court has repeatedly emphasised that such discretion must be exercised sensibly and in appropriate cases. In Maneka Sanjay Gandhi vs Rani Jethmalani (1979), the Court recognised the need for a liberal and pragmatic approach where circumstances warrant exemption. The principle is not that personal attendance is invariably mandatory; nor is it that exemption follows automatically from social or political status. The crucial distinction is between immunity from the process and exemption from personal attendance. The former is a matter of constitutional or statutory law. The latter is a matter of judicial discretion.Judicial discretion must be exercised judiciously, by considering relevant circumstances, the interests of justice and the needs of the proceedings. The Narasimha Rao episode illustrates the distinction. While serving as Prime Minister, Rao faced criminal proceedings and appeared before the courts. When security and official responsibilities created practical difficulties, the Court accommodated him with orders permitting representation through counsel. The lesson is not simply that “even the Prime Minister had to appear”. It is more nuanced: high office does not confer immunity from judicial process, but legitimate practical difficulties may justify judicial accommodation.(The writer is an advocate in Madras high court)
