Article 361 of the Constitution of India provides immunity to the President of India and Governors of states from certain legal proceedings during their term of office. This article aims to protect these high constitutional functionaries from potential harassment and ensure they can perform their duties without fear of legal repercussions.

Article 361, Constitution of India 1950

(1) The President, or the Governor or Rajpramukh 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 the conduct of the President may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under article 61:

⁠Provided further 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 or Rajpramukh 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 or Rajpramukh 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 or Rajpramukh 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 as President, or as Governor or Rajpramukh of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor or the Rajpramukh, 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.

Why President and Governors are Granted Immunity?

The objective for granting immunity to the Governor was elucidated in the case of S.R. Bommai and Ors. vs. Union of India – as he is not empowered to exercise executive functions individually and any action undertaken by the Governor is the result of his ministers or subordinates’ actions. Therefore, it is they who have to defend and justify every action performed by them in the name of the Governor in the court of law.

Must read: Governor and State Governments – Why the friction occurs?

The immunity is to be only afforded to the governor in the exercise of the executive functions as action taken in the name of the Governor is the executive action of the State. Accordingly, Article 361(1) of the constitution is in consonance with the rationale of granting immunity to the governor as he acts only upon the aid and advice of the Council of Ministers.

Accordingly, actions undertaken by the Governor, including such actions susceptible to allegations of malafides, are required to be defended by the Union/State.

Article 361(2) : Immunity even for Personal Criminal Acts

While there may be substance in the argument that that the President and the Governors shall have immunity for official acts as they are done in the context of the executive powers of the Union/State being vested in them by Articles 53 and 154 respectively and because they act on the advice of the Council of Ministers under Articles 74 and 163, blanket immunity even for personal criminal acts would be against the principles of Natural Justice at the very least.

The protection given to the President and the Governor can be traced to the Latin maxim rex non potest peccare or “the king can do no wrong”, which is rooted in English legal traditions.

While Article 361(1) rightly provides immunity for official acts, the problem lies with Article 361(2), which gives a blanket immunity to the President and Governors for even personal acts in the context of criminal cases. In such a scenario, charges can be processed against the President or the Governor only when he leaves office.

For instance, Kalyan Singh, being the Governor of Rajasthan, was granted immunity in the mosque demolition case as long as he remained Governor of Rajasthan and the Court of Sessions framed charges against him only when he ceased to be the Governor. As a result, the right to speedy trial of the victim and effective qualitative justice is contravened and it becomes profound, especially in cases concerning sexual harassment where the delay in commencement of the trial agonizes the victim further.

However, it has been held in the Neelabati Behera case that absolute immunity of the State exists only in the context of sovereign functions of the government and not all functions of the government. Sovereign functions of a state are those functions for which the state is not legally accountable. These functions primarily relate to the defence, security, and maintenance of peace.

Does Article 361(2) Undermines the Fundamental Right to Justice?

The immunity granted to the President and Governors under Article 361 of the Indian Constitution has long been a subject of debate and scrutiny, especially in light of evolving societal expectations and legal interpretations.

While it is clear that the immunity granted to the President and Governors serves to protect their official actions, the absence of a clear limitation on personal acts, particularly in criminal matters, raises serious concerns about accountability. The blanket immunity provided under Article 361(2) could be seen as an outdated notion in the context of contemporary principles of natural justice, equality, and the rule of law.

Although the immunity is grounded in the idea of safeguarding executive functions, it appears to stretch beyond its original intent when it extends to personal actions that fall outside the scope of official duties. This not only creates an unbalanced system where certain individuals are shielded from legal consequences, but also undermines the fundamental right to justice, particularly for victims of criminal acts committed by those in high office.

The drafters of the Constitution may not have fully anticipated the complexities of modern governance, but it is now crucial to interpret Article 361 in a way that preserves both the dignity of the office and the principles of justice that form the foundation of Indian democracy.

Notable case laws interpreting Article 361

Rameshwar Prasad vs. Union of India (2006): The Supreme Court held that the civil immunity under Article 361(4) does not prevent citizens from challenging actions of the President or Governors on grounds of mala fides.

Ram Naresh vs State of Madhya Pradesh: The Madhya Pradesh High Court ruled that the immunity does not impair the police’s powers to investigate an offence, including recording the Governor’s statement.

Kishore Kumar Sinha vs. State of Bihar (2016): The Patna High Court clarified that while criminal proceedings cannot be initiated against a Governor during their term, investigation into allegations can still be conducted.

These interpretations suggest that while Article 361 provides significant protection, it is not absolute and may be subject to certain limitations, especially when fundamental rights are concerned.

Thus, at present it can be inferred that, while Governors have immunity from criminal proceedings during their term, this doesn’t completely shield them from the investigative process. Police can still conduct necessary investigative steps, including taking statements from the Governor, if it’s crucial for the case. This balances the need to protect the Governor’s office with the requirements of criminal justice.

PRACTICE QUESTIONS

QUES . With reference to the Indian polity, consider the following statements: UPSC PRELIMS 2025

I. The Governor of a State is not answerable to any court for the exercise and performance of the powers and duties of his/her office.

II. No criminal proceedings shall be instituted or continued against the Governor during his/her term of office.

III. Members of a State Legislature are not liable to any proceedings in any court in respect of anything said within the House.

Which of the statements given above are correct?

(a) I and II only

(b) II and III only

(c) I and III only

(d) I, II and III

Show Answer