Article 361 of the Constitution of India

The Indian Constitution provides a well-defined legal framework to ensure the smooth functioning of the government while maintaining accountability and the rule of law. Article 361 of the Indian Constitution grants the President of India and the Governors of states immunity from judicial scrutiny and legal proceedings for acts performed in their official capacity. 

This special protection is essential to enable them to perform their duties without undue interference. However, it also raises questions about accountability and the extent of legal immunity. This article delves into the origins, scope, judicial interpretations, and global perspectives on Article 361, analysing its impact on constitutional governance in India.

Understanding Article 361 of the Constitution of India

Article 361 is an exception to Article 14 (Right to Equality) of the Constitution, as it provides special legal protection to the President and Governors. The main features of Article 361 include:

1. Immunity from Judicial Scrutiny: The President and Governors cannot be made answerable to any court for exercising the powers and duties of their office.
2. Protection from Criminal Proceedings: No criminal case can be filed or continued against the President or a Governor during their term of office.
3. Immunity from Arrest or Imprisonment: No court can issue an order for the arrest or imprisonment of the President or a Governor while they hold office.
4. Civil Proceedings with a Notice Period: Civil cases related to acts performed in a personal capacity can be initiated, but only after a mandatory two-month written notice.

These provisions ensure that the highest constitutional functionaries can perform their roles without fear of legal entanglements that could disrupt governance. However, this immunity is not absolute, and certain exceptions and interpretations by the judiciary provide clarity on its application.

Text of Article 361 of the Constitution of India

361. Protection of President and Governors and Rajpramukhs

(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 hi m 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:

Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government 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 be issued from any court during his term of office.

(4) No 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 next after notice in writing has been delivered to the President or the Governor, as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefore, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims.

Origins of Article 361 and Its Constitutional Debates

The concept of granting immunity to heads of state has historical roots in the Latin maxim “Rex non potest peccare“, meaning “The King can do no wrong.” This principle was carried forward into constitutional governance to protect state heads from undue litigation.

During the Constituent Assembly debates in 1949, members discussed Draft Article 302, which later became Article 361. Concerns were raised about the extent of immunity, particularly whether criminal proceedings against a Governor should be allowed in cases of serious allegations. The framers of the Constitution balanced these concerns by ensuring that while immunity was granted during tenure, legal proceedings could resume after the individual left office.

Landmark Cases Related to Article 361 of Constitution of India

Over the years, the judiciary has interpreted Article 361 to clarify its limitations and ensure that it does not become a tool for absolute protection. Some landmark cases related to Article 361 include:

1. State v. Kalyan Singh (2017): Kalyan Singh, the then-Governor of Rajasthan, was granted immunity under Article 361 in the Babri Masjid demolition case. However, the Supreme Court ruled that criminal proceedings could continue once he stepped down as Governor.
2. Vyapam Scam Case (2015): The Madhya Pradesh High Court upheld the immunity of the Governor while allowing investigations against other accused individuals. It stated that the Governor’s name should be “effaced” from the investigation until their tenure ended.
3. Rameshwar Prasad v. Union of India (2006): The Supreme Court ruled that while a Governor enjoys immunity from legal action for acts performed in their official capacity, courts can review their decisions to determine whether they were taken with mala fide intent.

These rulings demonstrate that while Article 361 provides significant protections, it does not grant absolute immunity. The courts have ensured that the principle of accountability is upheld.

Scope and Limitations of Article 361

The immunity under Article 361 is not permanent and ceases to apply once the President or Governor leaves office. This ensures that no one is above the law and that legal proceedings can resume after their term ends. The key limitations include:

• Criminal proceedings cannot be instituted or continued against a sitting President or Governor.
• Investigations can proceed against other accused individuals, but the Governor’s name must be removed from the investigation while in office.
• Courts can review decisions made by the Governor, even if they cannot prosecute the Governor directly.

Article 361 vs. Right to Equality (Article 14)

Article 14 of the Indian Constitution guarantees equality before the law. However, Article 361 creates an exception by granting special privileges to the President and Governors. While this may seem like a contradiction, the rationale behind this exception is to ensure that high constitutional offices function without interference.

Critics argue that such immunity could be misused, leading to a lack of accountability. However, legal experts maintain that this provision is necessary to uphold the dignity of the office and prevent politically motivated lawsuits that could disrupt governance.

Conclusion

Article 361 of the Indian Constitution provides essential legal immunity to the President and Governors, ensuring they can perform their duties without undue interference. However, judicial interpretations have established that this immunity is not absolute and does not shield officeholders from accountability. While Article 361 creates an exception to the Right to Equality under Article 14, it serves a functional purpose in governance.