Article 361 of the Indian Constitution provides specific protections and immunities to the President of India and the Governors of States. This provision aims to ensure that these high constitutional functionaries can perform their duties without fear of harassment or undue influence, thereby preserving the integrity and independence of their office. The article balances the need for accountability with the necessity of maintaining the dignity and effectiveness of these crucial positions within the Indian governance structure.
Original Text
(1) The President, or the Governor or Rajpramukh [now repealed] of a State, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to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:
Provided 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 issue 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, 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 therefor, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims.
Detailed Explanation
Article 361 outlines the protections afforded to the President and Governors. Clause (1) shields them from being answerable to any court regarding the exercise and performance of their official duties. This does not, however, prevent legal proceedings against the Government of India or the State Governments themselves. Clause (2) explicitly bars the institution or continuation of any criminal proceedings against these officials during their term of office. Clause (3) prevents any court from issuing processes for their arrest or imprisonment while they hold office. Clause (4) deals with civil proceedings against the President or Governor for acts done in their personal capacity. It stipulates that such proceedings cannot be initiated during their term unless a two-month notice is first served, detailing the nature of the proceedings, cause of action, and the relief sought.
Detailed Notes
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Clause (1): Immunity from Court Accountability for Official Acts
- Protects the President and Governors from being answerable to any court for actions performed in their official capacity.
- This immunity is crucial for ensuring that they can perform their duties without fear of legal repercussions.
- The proviso clarifies that the immunity does not restrict the right to bring proceedings against the Government of India or a State Government. This upholds the principle of governmental accountability.
- The protection covers both the exercise of powers and the performance of duties.
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Clause (2): Bar on Criminal Proceedings
- Prohibits the initiation or continuation of any criminal proceedings against the President or Governor during their term of office.
- The rationale is to ensure that these high officials are not subjected to potential harassment or distraction from their duties.
- This is an absolute bar, meaning no criminal proceedings can be started or continued, irrespective of the nature of the alleged offense.
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Clause (3): Prohibition of Arrest or Imprisonment
- Prevents any court from issuing an order for the arrest or imprisonment of the President or Governor during their term of office.
- This is in line with the dignity and decorum expected of these high offices.
- The immunity ensures that they are not subjected to physical coercion that could impede their ability to function effectively.
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Clause (4): Civil Proceedings and Prior Notice
- Addresses civil proceedings against the President or Governor for actions taken in their personal capacity.
- It does not grant complete immunity but requires a two-month notice before such proceedings can be initiated during their term of office.
- The notice must contain specific details about the proceedings, including the cause of action, the relief sought, and the identity of the party initiating the proceedings.
- The purpose of the notice is to provide an opportunity for an amicable resolution or settlement before the matter reaches the courts.
- This clause applies to acts done both before and after assuming office.
Additional Comments
- The immunities provided by Article 361 are personal to the President and Governors and do not extend to others acting on their behalf.
- The article reflects a delicate balance between the need to protect the dignity and independence of high constitutional offices and the principle of accountability.
- The protection under Article 361 ceases once the President or Governor demits office, after which they are subject to the law like any other citizen.
Article 361 safeguards the President and Governors by granting immunity from court proceedings concerning their official duties. It prohibits criminal proceedings and arrest during their tenure. Civil proceedings for personal acts require a two-month prior notice. These provisions ensure the effective functioning and dignity of these high offices while maintaining government accountability.