Protection of President and Governors and Rajpramukhs

Article 302, Draft Constitution of India 1948

(1) The President or the Governor 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 50 of this Constitution:

Provided further that nothing in this clause shall be construed as restricting the right of any person to bring against the Government of India or the Government of a State such proceedings as are mentioned in Chapter III of Part X of this Constitution.

(2) No criminal proceedings whatsoever shall be instituted or continued against the President or the Governor 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 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 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 Governor of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor, 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.

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.

Draft Article 302 (Article 361 of the Constitution of India, 1950) was discussed in the Constituent Assembly on 8 September 1949. The Draft Article barred courts of law from questioning any action taken by the President of India or Governor(s) of a State. While in office, the President and Governors cannot be charged with a crime, arrested or imprisoned. A civil case, however, can be filed against them. The Draft Article clarified that citizens’ right to sue the Union or State Government(s) remained unaffected.

The Drafting Committee Chairman introduced some amendments. One of them aimed to more comprehensively and unequivocally signal that nothing in the Draft Article took away a person’s right to sue the Union or State government(s). A Drafting Committee colleague emphasised that this amendment aimed to protect citizens’ fundamental rights.

One Member found the phrase ‘during his term of office’ ambiguous. He said that it could mean two things: While in office, the President and Governor were not liable for any criminal act they commit, or that the President or Governor had to resign as soon as they were charged with committing a crime. Which of these did the Draft Article imply? — the Member asked the Drafting Committee. Despite the Member’s requests, the question remained unaddressed.

There was no other significant discussion. On 8 September 1949 the Assembly adopted Draft Article 302 with the amendments suggested by the Draft Committee Chairman.