May 26, 2024
Home » WHETHER THE PRESIDENT AND GOVERNOR HOLD ABSOLUTE EXEMPTION FROM CRIMINAL LIABILITY? ARTICLE 361 OF THE INDIAN CONSTITUTION
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This article has been written by Advocate Ayush Chandra, law graduate from Amity University and Founder of LegalOnus

Abstract

Article 361 of the Indian Constitution [i]offers immunity to the President and Governors from certain legal proceedings during their term in office. This article examines various facets of this immunity provision.

Primarily, it addresses the question of whether Governors enjoy absolute exemption from criminal liability throughout their tenure. Through an exploration of case laws, the article substantiates the legal framework established by Article 361, illustrating how courts have interpreted and applied immunity clauses for these high-ranking officials.

Furthermore, the article delves into instances where Governors have faced allegations of wrongdoing but were shielded from prosecution due to the protections afforded by Article 361. These case studies underscore the practical implications of the immunity provision.

Finally, the article contemplates whether there should be exceptions to the immunity granted to Presidents and Governors. It navigates the delicate balance between accountability and the smooth functioning of governmental institutions, offering insights into the ongoing debate surrounding this constitutional safeguard.

In essence, this article provides a comprehensive analysis of the protection extended to Presidents and Governors under Article 361, shedding light on its implications for governance and legal accountability in India.

Introduction

Article 361 of the Indian Constitution, provided within Part XIX under the Miscellaneous section, delineates the pinnacle of immunity bestowed upon Presidents and former Rajpramukhs. Despite the constitutional watershed represented by the Constitution (Seventh Amendment) Act, 1956, which not only annulled the positions of “Rajpramukh” and “Uparajpramukh” but also ushered in the era of Governors[ii], this statute remains a cornerstone of legal safeguarding. This transformative legislative stride harmonized with the overarching ambition of restructuring Indian states along linguistic contours, a vision actualized through the State Reorganization Act, 1956.

Article 361 stands as a bastion, shielding the esteemed occupants of two distinguished posts under the Indian Constitution:

  1. The President
  2. The Governors of the States

According to Article 52[iii], there shall be a President of India, and according to Article 53, Clause 1[iv], the executive power of the Union shall be vested in the President, which indeed includes a fundamental responsibility enriched in the hands of the President. This indicates that the President of India holds the most honourable position provided in the Constitution. Similarly, according to Article 153 of the Indian Constitution[v], there shall be a Governor for each State, and he shall be the head of the executive department of the respective state.

The main reason to scrutinize these provisions is to understand the importance of Article 361 of the Constitution and the basic reason or motive of the framers of this article and the Constitution. As of now, it should be indicated that the positions of President and Governor are of great importance, as they have many immunities provided by the Constitution, one of which is outlined in the mentioned article.

AN ANALYSIS OF ARTICLE 361 OF THE CONSTITUTION

Article 361 exempts the President (Article 52) and Governors of states (Article 153) from answering to any court in India. It states that they cannot be accused or called upon in courts for any criminal offence while in office. However, the President’s conduct can be questioned by a body appointed for impeachment investigation under article 61[vi]

It is crucial to note that this immunity applies only to the President and Governors, not to the central or state governments. Three immunities are provided under Article 361:

  1. No criminal proceedings whatsoever.
  2. No process for arrest or imprisonment.
  3. No civil proceedings against the President or Governors.

NO CRIMINAL PROCEEDINGS WHATSOEVER

Article 361 Clause 2 shields the President and Governors from any criminal prosecution during their tenure, ensuring they can fulfil their duties without fear of legal harassment. This constitutional provision erects an impenetrable fortress, immunizing these esteemed dignitaries from any criminal proceedings, irrespective of their nature or gravity.

In essence, Article 361 establishes an absolute safeguard, ensuring that neither the President nor Governors can be subjected to any criminal allegations or charges during their tenure in office. This blanket immunity is all-encompassing, encompassing all possible criminal offences, regardless of whether they arise from official duties or personal actions.

Such robust protection serves multiple purposes.

  1. It shields the highest offices of the land from frivolous or politically motivated legal actions,
  2. safeguarding their integrity and independence.

Moreover, it fosters an environment conducive to effective governance, enabling the President and Governors to discharge their constitutional duties without the spectra of legal harassment or interference.

THERE SHALL BE NO PROCESS FOR ARREST OR IMPRISONMENT

Article 361 clause 3, prevents the initiation of legal proceedings leading to arrest or imprisonment of the President or Governors while in office. It creates a shield of immunity, protecting them from being subjected to criminal proceedings, regardless of the nature or severity of the alleged offence.

Additionally, Section 133 of the Code of Civil Procedure [vii]exempts certain individuals, including the President, Vice-President, Governors, and Judges of the Supreme Court and High Courts, from appearing in court.

According to Section 133 of the Code of Civil Procedure (CPC) provides exemptions from court appearances for certain individuals, which include:

  1. The President of India
  2. The Vice-President of India
  3. Governors of States
  4. Judges of the Supreme Court and High Courts, etc.

This provision acknowledges the high constitutional offices held by these individuals and exempts them from the obligation to appear in court, allowing them to focus on their official duties without the burden of legal proceedings.

This immunity serves several purposes.

Firstly, it ensures that these officials can carry out their duties without fear of harassment or interference from legal actions. It also upholds the dignity and integrity of the offices they hold by shielding them from potential legal vulnerabilities.

However, it’s important to note that this immunity is not absolute and does not extend beyond their term of office. Once they step down from their positions, they can be subject to legal proceedings like any other citizen. This provision underscores the unique status and responsibilities entrusted to these high-ranking officials within the Indian constitutional framework.

THERE SHALL BE NO CIVIL PROCEEDING AGAINST THE POST OF PRESIDENT OR GOVERNORS

Article 361, Clause 4, provides an exception to the general rule that no civil proceeding can be initiated against the President or Governor, except after the expiration of two months following the delivery of a written notice to the President or the Governor. The notice shall include the following:

  1. The cause of action,
  2. The names of the parties,
  3. Description and place of residence of the party by whom such proceedings are to be instituted, and
  4. The relief which he claims.

WHETHER THE POST HOLDS ABSOLUTE EXEMPTION FROM CRIMINAL?

According to Sr. Advocate Devadatt Kamat told the Indian Express:[viii]

“The Constitution contemplates a complete bar against prosecuting the governor. The governor cannot be named an accused. The police can act only after the governor ceases to be in office, which is when either the governor resigns or he no longer enjoys the confidence of the president.”

However, in the landmark judgment in the case of Rameshwar Prasad v Union of India[ix], the Supreme Court asserted that according to article 361 of the Indian constitution, the governor or president enjoys immunity against being called for any criminal case. The court also mentioned that the post under Article 361 is not answerable to any court.

PRECEDENTS WHERE CRIMINAL ACTION WAS HALTED AGAINST THE GOVERNOR: BUT COLLAPSED

There are several different cases in which the complainant wishes to take action against the governor, but undoubtedly, the respective courts shield the position by taking the immunity provided under the mentioned article. For instance, in 2017, the Supreme Court allowed fresh charges of criminal conspiracy under the Indian Penal Code against the BJP leaders L. K. Advani, Murli Manohar Joshi, and Uma Bharti in the 1992 demolition of Babri Masjid. But it is to be noted that former UP CM Kalyan Singh, who was then the Governor of Rajasthan, was completely exempted from the trial. The court held that Mr. Kalyan Singh, being the governor of Rajasthan, would be exempted from the trial. The court of session will only frame charges against him when he ceases to be governor.[x]

Again, in the case of Amid allegations of sexual harassment, Meghalaya Governor V. Shanmuganathan[xi] tendered his resignation midnight following calls from a faction of Raj Bhavan staff for his dismissal, citing concerns over the significant erosion of the dignity associated with the gubernatorial position.

Another instance in 2009, then Andhra Pradesh Governor N.D. Tiwari resigned amidst a storm of controversy triggered by a sting operation allegedly depicting him in a compromising situation with three women.[xii]

Conclusion

The question of whether there should be exceptions to the immunity granted to Presidents and Governors revolves around balancing accountability with the efficient functioning of governmental institutions. On one hand, immunity safeguards the highest offices from undue distractions and politically motivated legal actions, enabling them to focus on their duties. However, unchecked immunity may foster a culture of impunity, potentially shielding these officials from rightful legal scrutiny.

Exceptions to immunity could be considered in cases of serious criminal offences where there is substantial evidence implicating the President or Governor. Such exceptions would uphold the principles of justice and accountability, ensuring that no individual, regardless of their position, is above the law. However, care must be taken to prevent frivolous or politically motivated legal actions that could disrupt governance.

The ongoing debate surrounding this constitutional safeguard underscores the need for a nuanced approach that balances the imperatives of accountability with the practicalities of governing. Any potential exceptions to immunity must be carefully delineated to preserve the integrity of the highest offices while upholding the rule of law. Ultimately, the goal should be to strike a delicate balance that fosters transparency, accountability, and the effective functioning of governmental institutions.


[i] https://indiankanoon.org/doc/1470888/

[ii] https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-seventh-amendment-act-1956

[iii] https://indiankanoon.org/doc/1205651/

[iv] https://indiankanoon.org/doc/1597349/

[v] https://indiankanoon.org/doc/1606546/

[vi] https://indiankanoon.org/doc/594857/

[vii] https://indiankanoon.org/doc/64371308/

[viii] https://indianexpress.com/article/explained/explained-law/article-361-immunity-shield-until-governor-in-office-9304516/

[ix] https://indiankanoon.org/doc/79280249/

[x] M. Siddiq v Mahant Suresh Das (Case Number: CA 10866-10867/2010)

[xi] https://timesofindia.indiatimes.com/india/meghalaya-governor-v-shanmuganathan-resigns/articleshow/56799574.cms

[xii] https://www.indiatoday.in/india/story/tiwari-resigns-as-ap-governor-after-sex-slur-63751-2009-12-25


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