Article 361

Article 361 of the Constitution of India grants legal immunity and protection to the President, Governors of States, and formerly, the Rajpramukhs, for acts carried out in the exercise of their official duties. This provision seeks to preserve the dignity, independence, and functional efficiency of the highest constitutional offices in India by ensuring that they remain free from unnecessary legal interference during their tenure.

Constitutional Basis and Scope

Article 361 is part of Chapter I of Part XIX of the Constitution, which deals with “Miscellaneous” provisions relating to constitutional authorities. It reflects the principle that certain high offices of the State must function independently, without the threat of litigation or personal liability hindering the discharge of constitutional duties.
The provision offers protection to three categories of constitutional heads:

• The President of India,
• The Governors of States, and
• The Rajpramukhs, who were the constitutional heads of former Part B States before their position was abolished by the Seventh Amendment (1956).

Although Rajpramukhs no longer exist, the historical reference remains significant in understanding the evolution of constitutional immunity in India.

Immunity from Legal Proceedings

Clause (1) of Article 361 provides that the President and the Governors are not answerable to any court for the exercise and performance of the powers and duties of their respective offices, or for any act done or purported to be done in the exercise of those powers.
This immunity is comprehensive in nature and covers both civil and criminal matters concerning official acts. It ensures that no judicial proceedings can be initiated to question their conduct while they hold office.
However, this immunity does not extend to the Government of India or a State Government, which can still be held liable for acts committed by the President or Governors in their official capacities. Moreover, under Article 61, the conduct of the President can be examined by Parliament through the process of impeachment for violation of the Constitution, ensuring a form of political accountability.

Prohibition of Criminal Proceedings

Clause (2) of Article 361 explicitly prohibits the initiation or continuation of any criminal proceedings against the President or a Governor during their term of office. Additionally, no process for their arrest or imprisonment shall be issued or executed during this period.
This protection is not permanent; it is suspended once the individual ceases to hold office. After demitting office, the President or a Governor may face legal action for any criminal act committed during or prior to their tenure. The purpose of this safeguard is to prevent the misuse of criminal law as a tool of political harassment and to ensure the uninterrupted functioning of constitutional authority.

Civil Proceedings and Notice Requirement

Clause (4) of Article 361 allows civil proceedings to be instituted against the President or a Governor for acts done in their personal capacity. However, certain procedural conditions must be met:

• A two-month advance notice must be given to the concerned officeholder, specifying the nature of the claim and the relief sought.
• The proceeding can be initiated only after this notice period expires.

This clause draws a distinction between official acts (which are protected) and personal acts (which are not), thereby ensuring a balance between immunity and accountability.

Significance of Article 361

Article 361 plays a pivotal role in maintaining the constitutional independence of the President and Governors. These functionaries serve as the ceremonial heads of the Union and States, and their impartiality is vital to the stability of parliamentary democracy. The immunity protects them from frivolous litigation or political vendettas that could otherwise disrupt their constitutional responsibilities.
By insulating these high offices from legal distractions, Article 361 ensures continuity of governance and reinforces the dignity and authority associated with these positions.

Judicial Interpretation and Case Law

Indian courts have, on multiple occasions, interpreted and clarified the scope and limits of immunity under Article 361:

• M. S. M. Sharma v. Krishna Sinha (1959): The Supreme Court affirmed that the President and Governors enjoy complete immunity from court proceedings concerning official acts performed during their tenure.
• State of Karnataka v. Union of India (1977): The Court reiterated that although the President and Governors are immune from judicial proceedings, their actions can be examined to ensure that they are consistent with constitutional provisions.
• Indira Gandhi v. Raj Narain (1975): While dealing with electoral accountability, the Court observed that immunity must coexist with democratic responsibility, implying that constitutional functionaries are not beyond public scrutiny.
• Keshavananda Bharati v. State of Kerala (1973): The judgment, though not directly concerning Article 361, underscored the importance of preserving constitutional checks and balances, which include ensuring that immunities do not undermine the rule of law.

In comparative constitutional perspective, the principle underlying Article 361 draws inspiration from the British doctrine of sovereign immunity, as reflected in the case R. v. Governor of the Tower of London (1970), which recognised the protection of heads of state from judicial prosecution in their official capacity.

Relationship with Related Constitutional Provisions

Article 361 is closely linked to other constitutional provisions that ensure accountability within a democratic framework:

• Article 61: Provides for the impeachment of the President for violation of the Constitution, thus serving as a constitutional check on presidential conduct.
• Article 362: (Now omitted) dealt with the rights and privileges of former rulers of Indian States (Rajpramukhs) at the time of integration.
• Article 361A: Grants protection to journalists for publishing reports of legislative proceedings, complementing the broader principle of immunity in public functions.

These interconnected provisions collectively maintain the equilibrium between immunity and responsibility.

Implications and Democratic Balance

The immunity conferred under Article 361 is not absolute. While it prevents direct legal proceedings against the President and Governors during their tenure, it does not shield the acts of the government or the legality of executive decisions from judicial review. Courts may scrutinise whether actions taken “in the name of” the President or Governors are constitutionally valid, thus ensuring the supremacy of law.
Furthermore, the political mechanism of impeachment (for the President) and removal by the President (for Governors) serves as a constitutional safeguard against abuse of authority.

Criticism and Contemporary Debate

Despite its necessity, Article 361 has been subject to criticism on several grounds:

• Possibility of misuse: Critics argue that the immunity might be misused to delay justice or evade responsibility for personal misconduct.
• Accountability concerns: Some scholars suggest that while protecting the dignity of the office, the provision should be refined to allow limited judicial oversight in cases of grave wrongdoing.
• Democratic transparency: In a modern democracy, the demand for transparency and accountability has prompted debates on revisiting the scope of constitutional immunities.

Nevertheless, proponents maintain that Article 361 remains vital for ensuring the neutrality, independence, and effective functioning of India’s highest constitutional offices.