Article 361 of the Constitution of India

Article 361 of the Constitution of India provides immunity and special privileges to the President of India and the Governors of States in the discharge of their official duties. It safeguards these high constitutional authorities from judicial proceedings and certain forms of legal scrutiny while they hold office, ensuring that they can function with independence and dignity, free from undue influence or harassment through litigation.

Purpose and Rationale

The underlying principle of Article 361 is to preserve the independence of the executive head of the Union and the States. As the constitutional heads of their respective governments, the President and the Governors are required to act according to constitutional provisions and upon the advice of their respective Councils of Ministers. To enable them to carry out these functions impartially and without distraction, they are accorded limited immunity from judicial intervention during their tenure.
This immunity, however, is not absolute or permanent; it operates only for the duration of office and is subject to the broader constitutional principle that no one is above the law.

Text of Article 361

Article 361 reads as follows:

1. The President or the Governor 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 him in the exercise and performance of those powers and duties.
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 issue from any court during his term of office.
4. No civil proceedings in which relief is claimed against the President or the Governor shall be instituted during his term of office 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, unless a two-month written notice has been given to him specifying the nature of the proceedings and the relief sought.

These four clauses together define the scope and extent of the immunity and privileges available to these constitutional heads.

Explanation of Clauses

• Clause (1): Immunity from Judicial Accountability in Official ActsThis clause ensures that the President or Governor cannot be held personally answerable before any court for actions taken while discharging constitutional duties. However, this does not mean that the actions themselves are beyond judicial review. The validity of their actions can be challenged in court, but the proceedings must be directed against the Union or the State government, not the President or Governor personally.
• Clause (2): Immunity from Criminal ProceedingsNo criminal case can be initiated or continued against the President or a Governor during their term. This immunity is absolute in nature and covers all offences, whether alleged to have occurred before or during their tenure.
• Clause (3): Protection from Arrest or ImprisonmentThis clause provides further protection by ensuring that the President or Governor cannot be arrested or imprisoned while in office, even in connection with proceedings unrelated to their official capacity. This safeguard upholds the dignity of the office and prevents disruption of constitutional functions.
• Clause (4): Conditional Immunity from Civil ProceedingsIn the case of civil suits related to personal acts, proceedings can be initiated only after serving a two-month written notice specifying the cause of action and relief sought. This allows the constitutional head sufficient time to respond or settle the matter without litigation and ensures that frivolous civil suits do not impede the functioning of the office.

Historical and Constitutional Background

The framers of the Constitution derived this concept from the British constitutional principle of sovereign immunity, where the monarch could “do no wrong”. However, in India, this immunity is not based on sovereignty, but rather on functional necessity. The President and Governors are constitutional heads, not absolute rulers, and their acts are subject to the rule of law.
Dr. B. R. Ambedkar, during the Constituent Assembly debates, clarified that while personal accountability was excluded, the actions of these dignitaries would remain constitutionally reviewable. Therefore, immunity applies only to personal appearance and liability, not to the legality of official acts.

Judicial Interpretation

The judiciary has, through various judgments, interpreted Article 361 to ensure that the immunity granted is balanced against the principles of accountability and constitutional supremacy.

• Rameshwar Prasad v. Union of India (2006): The Supreme Court held that while the Governor enjoys immunity under Article 361, the actions taken on his advice can still be examined judicially. The President’s or Governor’s personal immunity does not bar courts from reviewing the validity of the acts done under their authority.
• SR Bommai v. Union of India (1994): The Supreme Court ruled that the President’s proclamation under Article 356 (imposing President’s Rule) can be reviewed by courts, even though the President himself cannot be made a party to the proceedings.
• Nabam Rebia v. Deputy Speaker (2016): The Court reiterated that the Governor’s discretion in summoning or dissolving a legislative assembly is subject to judicial review, even though the Governor himself is protected from personal liability.

These judgments affirm that the constitutional immunity under Article 361 is personal in nature but does not extend to immunity of the acts performed under constitutional authority.

Nature of Immunity

Article 361 offers temporary and qualified immunity. It is designed to ensure the smooth functioning of constitutional offices without legal obstruction, not to shield individuals from accountability. The protection ceases once the term of office ends, after which both criminal and civil proceedings can be initiated for actions taken during or prior to tenure, if warranted by law.
The immunity is also asymmetric — it extends to the President and Governors but not to the Prime Minister or Chief Ministers, who are fully accountable to both the courts and legislatures. This distinction exists because the President and Governors act on ministerial advice and are not directly responsible for policy decisions.

Practical Application

In practice, Article 361 ensures:

• The continuity of governance without disruption from litigation.
• The constitutional dignity of the highest executive offices.
• Protection against politically motivated prosecutions during tenure.

However, while personal immunity exists, constitutional checks remain intact. Parliamentary impeachment under Article 61 serves as a mechanism for holding the President accountable for violations of the Constitution, and Governors may be removed by the President if their conduct is found inappropriate.

Comparison with Other Democracies

Many democratic systems provide similar immunity for heads of state:

• In the United States, the President enjoys limited immunity for official acts but can be investigated and sued for private conduct.
• In France and Italy, immunity extends during tenure but not beyond it.India’s system resembles these models, providing immunity during office but maintaining accountability once the term ends.

Significance in the Constitutional Scheme

Article 361 serves a dual purpose:

1. To uphold the dignity, independence, and efficiency of constitutional offices.
2. To preserve the principle of constitutional accountability by ensuring that immunity does not translate into impunity.

It ensures that executive heads can perform their duties without legal intimidation while maintaining the supremacy of law through judicial review of their actions.

Limitations

Despite its importance, the provision has faced criticism for potentially shielding executives from immediate accountability. However, the temporary nature of the immunity and the availability of post-tenure proceedings ensure that it does not create a permanent barrier to justice. Courts have consistently guarded against any expansive interpretation that might undermine the rule of law.