Article 361: Origin, Provisions, Landmark Cases & More | UPSC Notes

Article 361 of the Indian Constitution grants immunity to the President of India and Governors of Indian States against any legal proceedings during their tenure. The provision ensures that immunity is provided so that the highest functionaries under the Constitution can perform duties without facing the distraction that comes with litigation. It does not amount to absolute immunity; it only carries limited immunity. A very brief description of them will help in understanding the stipulation and exceptions to this immunity, so crucial in the study of the Indian legal-political system.

This topic is pertinent to the General Studies Paper II of the UPSC Civil Services Examination, which deals with Polity, Constitution, Governance, and related issues. The subject is to understand the constitutional provisions, their ramifications, and how the executive and judiciary operate within the Indian polity. Aspirants who want to crack the examination must know Article 361 in a detailed way because, as a bedrock, it forms the understanding of legal immunities given to the highest offices in India, along with the checks and balances against truthfully very unique setups of India's polity.

What is Article 361 of the Indian Constitution?

Article 361 of the Indian Constitution provides immunity from legal action to the President and Governors while they are in office. This immunity extends to both civil and criminal processes to ensure that these dignitaries are not distracted or impeded in their public functions by legal processes. This is indeed in the nature of the rule that the executive head of the State should be free to enter their constitutional roles without the risk of being dragged into the courts of law. Nevertheless, this immunity is limited under specific conditions and not an absolute guarantee.

Origin of the Concept of Immunity

The roots of providing the head of state with immunity have historical origin. The same provisions exist for the head of state in many democratic systems, such as in the United Kingdom and the United States, being vested so as not to harass the powers of the state's executive machinery. In the Indian context, it was borrowed from the British Rule of Law, where the Sovereign is immune from prosecution. The framers of the Indian Constitution made it a point to include this provision in order to save the dignity and independence of the office of the President and Governors.

Read the article on the Ordinance power of president and Governor!

Two Major Sub Clauses of Article 361

The article contains some special sub-clauses that mention the scope and the nature of the given immunity:

Article 361(1)

Article 361(1) of the Indian constitution provides that neither the President nor the Governor can be answerable to any court for the exercise or performance of the powers or duties of their offices. Nor have any act done by either of them or purporting to be done in the exercise and performance of those duties and powers be answerable to a court.

Article 361(2)

No civil proceedings, for anything done by President or the Governor in his personal capacity, can be instituted in a court during his term of office, against either of them, in respect of any act done or purporting to be done by him in his personal capacity before or after he entered upon his office, until the expiration of two months next after notice in writing has been delivered to the President or the Governor.

Read the article on the Pardoning Power of Governor!

Key Provisions of Article 361

Article 361 follows the format of specific immunities. It points out the scope and extent to which the guarding for these immunities can be reached. The key provisions hereunto are as follows:

• Immunity from Criminal Proceedings: The president or the governor cannot be prosecuted in criminous manner and cannot, in any condition, be imprisoned.
• Protection from Civil Proceedings: Civil proceedings can be initiated against the President or the Governor only after a notice of two months, wherein the person must state the nature of the proceedings, the cause of action, the name, residence, address of the person who is initiating such proceedings.
• No Arrest or Imprisonment: The President or the Governor shall not be arrested or imprisoned during their term in office.

These provisions are made so that the highest constitutional posts are not carried out with any interference in its functioning.

Read the article on the constitutional discretion of the governor!

Landmark Cases Related to Article 361 of the Indian Constitution

A number of landmark cases having bearings with Article 361, in setting limits, through interpretation and other parameters, contributed to Indian jurisprudence:

• Rameshwar Prasad & Ors. vs Union of India (2006): This case challenged the dissolution of the Bihar Legislative Assembly by the President. The advice so tendered to the President by the Council of Ministers can be enquired into by the Court even if the actions of the President are immune to judicial scrutiny.
• Raja Ram Pal vs Speaker, Lok Sabha & Ors. (2007): The Supreme Court reiterated that though there is immunity for the President's actions, taken on the advice of the council of ministers, the same is still open to judicial review; thus, immunity could not translate into absolute unaccountability.
• Tej Kiran Jain v. N. Sanjiva Reddy (1970): The case reiterated that the President, during his official functions, is absolutely immune from judicial review, provided the actions lie within the constitutional parameters.

Read the article on the comparison between president and governor!

Conclusion

Article 361 of the Indian Constitution is one of the most substantive constitutional provisions ensuring a wide berth from legal interventions on the part of the highest chariots of the state to carry out their official functions freely. It not only provides immunity but ensures that the immunity accorded does not tend to mutate in a manner likely to result in blanket immunity from accountability. The provisions stress the need for separation of powers and functions and ensure that, whilst the executive remains unhampered in its duties, it is yet accountable in its role as an advisory. The understanding of various nuances of Article 361 becomes very important for any student of the Indian constitutional and political setup, more so for all who are gearing up for the UPSC examination.

We hope your doubts regarding the topic have been addressed after going through the above article. Testbook offers good quality preparation material for different competitive examinations. Succeed in your UPSC IAS exam preparations by downloading the Testbook App here!