Article 361

Background and evolution

In a parliamentary system, the head of state acts largely on ministerial advice and symbolises the State. The framers borrowed from the British principle that "the King can do no wrong" and from other constitutions to protect the dignity of the office. Article 361 ensures that the President and Governors cannot be dragged into court for official acts or be arrested during their tenure, while leaving the government's actions open to challenge in the name of the Union or the state.

Accountability is maintained through other means. The President can be removed by impeachment under Article 61 for violation of the Constitution, and Governors hold office during the pleasure of the President. Ministers, who give the advice, are answerable to the legislature, and government actions can be challenged in court.

Key features and provisions

• Official acts (361(1)): the President or a Governor is not answerable to any court for the exercise and performance of the powers and duties of office, or for any act done or purporting to be done in their exercise.
• Impeachment exception: the conduct of the President may be brought under review by any court, tribunal or body appointed or designated by either House for investigating a charge under Article 61.
• Suits against government: the immunity does not restrict the right of any person to bring proceedings against the Government of India or a state government.
• Criminal proceedings (361(2)): no criminal proceedings may be instituted or continued against them in any court during their term.
• Arrest (361(3)): no process for arrest or imprisonment may be issued from any court during the term.
• Civil proceedings (361(4)): civil proceedings for acts done in a personal capacity, before or after taking office, may be instituted during the term only after two months' written notice.
• Article 361A: separately protects publication of true reports of proceedings of Parliament and state legislatures.