President Can Do Wrong? A Critical Analysis of Presidential Immunity

Authored by Harsh, a law student at Hidayatullah National Law University, Raipur

Supreme Court of India

Introduction

Article 361 of the Indian Constitution provides that the President of the Union of India, along with the Governors of all States, shall have immunity from all kinds of criminal proceedings and arrest until the end of their term of office. This kind of blanket immunity is not available in the case of civil cases. This discussion has come to light recently in the context of allegations of sexual harassment levelled by an employee of the Raj Bhavan against the current Governor of West Bengal, Dr. CV Ananda Bose. The alleged victim has moved to the Supreme Court after an “in-house judicial proceeding” by the Raj Bhavan acquitted him of all charges.

Although the concept of immunity traces its origins to Victorian times, with the Latin maxim "The King Can Do No Wrong" being incorporated in Section 306(1) of the Government of India Act, the Indian judiciary has long deviated from it, at least in spirit.  In the cases of Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India and in N. Nagendra Rao and Co. v. State of A.P., the courts have moved away from reliance on this absolutist approach and held that the sociological basis for this kind of immunity has come full circle in the context of Welfare State and that the “emphasis now is more on liberty, equality and the rule of law.”

Interpreting Article 361

Clause 1 of Article 361 provides immunity for official acts done by the President and Governors, while Clauses 2 and 3 provide immunity from the institution of criminal proceedings and process of arrest “in any case whatsoever,” thereby also including personal acts. What is surprising is that there is no constitutional limit put on these personal acts.  It must be noted that the drafters of the Constitution have used the terms “done or purported to be done” in Article 361. This implies that the immunity under Clause 1 extends to not only the acts and omissions done but also those which are incidental or ancillary to it, thereby widening the scope of immunity. Many judgments have held that the reasoning behind this blanket immunity comes from the fact that the actions of the President/Governors are subject to the aid and advice of the Council of Ministers. However, it remains unclear if this immunity would still be absolute in the context of powers exercised by the President and Governor, which are not subject to such ‘aid and advice’. The judiciary needs to give a clarification on the extent of such immunity. 

The Constituent Assembly Debate on Article 361, which was Article 302 in the draft Constitution, seems to have ignored some key concerns. For example, Hari Vishnu Kamath had raised an important question as to the interpretation of the words “term of office”, which was ignored by the Assembly. He said that this term is ambiguous as it leaves room for multiple interpretations; it may mean that no criminal proceedings be instituted against the President and Governors for either the full prescribed five years provided by Articles 56 and 156, respectively or only until the time that he/she is in office. 

Interestingly, there is a division of opinion within the judiciary as to whether the all-encompassing immunity provided under Article 361(2) extends to Contempt of Court. A plain reading would provide that it does, but it has been held in the case of Madhav Rao Jivaji Scindia v. UOI, that contempt of court is neither of a civil or criminal nature and Article 361(2) uses the words “criminal proceedings”.

Official Acts v. Personal 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. 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. 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.

The US Supreme Court had given the ‘Outer Perimeter Test’ in the case of Richard Nixon v. Ernest Fitzgerald, which differentiates between Official Acts and Personal Acts. For example, let us imagine that the Indian President and the US President murder a person. In India, no criminal proceedings will begin against him/her because of Article 361(2) of the Constitution. However, criminal proceedings would be initiated against the US President as this act comes outside the ‘perimeter of his direct or ancillary official acts’. One may argue that even in India, the proceedings can start after the person ceases to be the President/Governor but then what about the Right to Speedy Trial which has been established as fundamental right under Article 21 in the case of Hussainara Khatoon v. State of Bihar of the victim of such a criminal act? It has also been held in Clinton v. James and the recently decided case of Trump v. US that unofficial acts of the President have no kind of immunity, whether for civil or criminal cases. 

Criminal Liability For Official Acts

While the discussion regarding criminal liability of the President for Official Acts is completely absent in India, it is fuelling national debates in the United States after the dissenting minority opinion of Justices Sotomayor, Jackson and Kagan in US v. Trump. They opined that a blanket immunity for official acts will place the President above the law, as he would not be liable even for proven corruption and other illegal activities, only because it is done during the course of official duty. Justice Sotomayor also criticises looking at immunity for civil and criminal offences through the same lens, as the public stake in the latter cases is much higher. She also says that the case has in effect blurred the lines between official and unofficial acts, it defines the latter as “manifestly or palpably beyond [the president’s] authority”.

While DD Basu’s commentary on the Constitution of India does mention a list of offences that have been considered by the courts as outside the scope of “done or purported to be done” in official capacity for example, ‘misapplication of public money entrusted to his care’  in the case of Meads v King-Emperor, this does not translate to non-application of absolute immunity. This is because if any of the acts done by the President/Governor mentioned in the list are purported to be done in consonance with the constitution, nothing else is to be considered. In fact, the immunity will extend even if the act is malafide or against the constitution.

Conclusion

The principle of presidential immunity 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.

International comparisons, such as the approach taken by the U.S. in cases like Clinton v. James and Trump v. US, further suggest that the line between official and personal acts must be clearly defined to ensure that no one, regardless of position, remains above the law. The Indian judiciary, while having evolved over time, must continue to address the ambiguity in the interpretation of Article 361, ensuring that immunity does not become a tool for shielding misconduct or undermining the rule of law.

Ultimately, the concept of immunity, though necessary for the functioning of government, must be balanced with a commitment to accountability. 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. The judiciary needs to give a clear interpretation of Article 361 to achieve the same following precedents from the US courts.