ARTICLE 361 OF THE CONSTITUTION (Syllabus: GS Paper 2 – Polity)

Context: The Supreme Court agreed to examine the question of immunity to Governors from any kind of criminal prosecution, granted under Article 361 of the Constitution.

Article 361 of the Constitution

• About: It deals with immunity for the President and Governors, stating that they shall not be answerable to any court for their official actions or for any acts done in the performance of their duties.
• Two Crucial Sub-Clauses

oSub-Clause 1: No criminal proceedings shall be initiated or continued against the President or Governor of a State during their term of office.

oSub-Clause 2: No process for the arrest or imprisonment of the President or Governor of a State shall issue from any court during their term of office.

• Accountability and Criminal Proceedings: Governors cannot be held accountable to any court for their official duties, and no criminal proceedings can be initiated against them during their term.
• Civil Proceedings: It can be brought against Governors for their personal acts after giving two months' notice.
• Protection from Arrest: Governors cannot be arrested or imprisoned while in office.
• Post-Term Prosecution: If a Governor commits any criminal offense during their term, they can be prosecuted once their term ends, ensuring they are not above the law.

Supreme Court on the Immunities Enjoyed by the Governor

• Rameshwar Prasad v Union of India: The Supreme Court outlined the immunity enjoyed by the Governor even in cases of personal malafides, holding that the Governor enjoys complete immunity from being answerable to any court for their official duties and acts.
• Babri Masjid Demolition Case 1992: In 2017, the Supreme Court allowed fresh charges of criminal conspiracy against various leaders. However, the trial for former UP Chief Minister Kalyan Singh did not proceed as he was the Governor of Rajasthan at that time.