Article 361 of the Costitution of India with Case law
Article 361 of the Constitution of India
Title: Protection of President and Governors and Rajpramukhs
🧾 Bare Text Summary of Article 361:
Article 361 grants legal immunity to the President of India and the Governors of States while they are in office, providing them protection from legal proceedings (both civil and criminal) and ensuring the dignity and independence of their constitutional roles.
✅ Clause-wise Breakdown:
| Clause | Provision |
|---|---|
| 361(1) | The President or Governor is not answerable to any court for the exercise or performance of the powers and duties of their office. |
| → Exception: They may still be impeached or removed as per constitutional procedures. | |
| 361(2) | No criminal proceedings can be instituted or continued against the President or Governor during their term of office. |
| 361(3) | No process for arrest or imprisonment can be issued or executed against the President or Governor during their term. |
| 361(4) | Civil proceedings against them are permitted only after giving two months' prior notice in writing stating: |
| (a) the nature of the proceedings, | |
| (b) cause of action, and | |
| (c) details of relief sought. |
🧑⚖️ Key Case Laws on Article 361:
🔹 Rameshwar Prasad v. Union of India, (2006) 2 SCC 1
Facts: The Governor of Bihar dissolved the Assembly in 2005 without the first meeting being held.
Held:
The Governor’s decision was unconstitutional, but the Governor himself was not answerable under Article 361.
Court reaffirmed that Governor enjoys immunity, but their actions can be reviewed.
Judicial review of advice/actions is permitted, not personal prosecution.
🔹 Biman Chandra Bose v. Governor, West Bengal, AIR 1952 Cal 455
Held:
A Governor cannot be made a party to a court proceeding during tenure.
Reinforced the constitutional immunity under Article 361.
🔹 Rao Birender Singh v. P.S. Eshwarappa, AIR 1974 SC 1255
Held:
No court can issue notice, summon, or call for appearance of the President or Governor for any act done in official capacity.
🔹 State of Rajasthan v. Union of India, (1977) 3 SCC 592
Held:
Presidential and Governor decisions can be judicially reviewed, but not their personal liability.
Clarified the difference between review of official acts and personal prosecution.
📌 Important Clarification:
Immunity under Article 361 is personal – i.e., no court can prosecute the President or Governor personally while in office.
However, actions taken on the advice of the Cabinet or executive orders can still be challenged in courts.
🧾 Real-World Application:
| Scenario | Can It Be Challenged? | Who Is Protected? |
|---|---|---|
| Governor’s recommendation to dissolve assembly | ✅ Judicial review allowed | ❌ Governor not personally liable |
| President signs a controversial ordinance | ✅ Ordinance can be challenged | ❌ President not personally answerable |
| Governor accused of corruption while in office | ❌ No prosecution during tenure | ✅ Protected under Article 361 |
| Civil suit against Governor for past act | ✅ Allowed after notice of 2 months | ✅ Clause (4) applies |
📚 Related Constitutional Provisions:
| Article | Subject |
|---|---|
| 53 & 154 | Executive power of the Union and States |
| 74 & 163 | President/Governor to act on advice |
| 361A | Protection of publication of proceedings of Parliament and State Legislatures |
✅ Conclusion:
Article 361 ensures:
Functional independence of the President and Governors,
No criminal/civil harassment while in office,
But official acts remain subject to judicial scrutiny.
🔑 Key takeaway: Immunity is not impunity. Article 361 protects the office-holder personally, but not the legality of their decisions, which can still be reviewed in courts.
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