ARTICLE 361
Article 361 of the Indian Constitution provides certain immunities and privileges to the President of India and the Governors of States. It states:
"Protection of President and Governors and Rajpramukhs.
(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 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 as 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; and the plaint shall be endorsed in pursuance of the notice."
3. What are the provisions related to the Governor in the Indian Constitution?
The provisions related to the Governor in the Indian Constitution are outlined primarily in Articles 153 to 162.
Here's a summary of these provisions:
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Appointment and Tenure:
- Article 153: Provides for the appointment of a Governor by the President of India for each state.
- Article 156: Specifies that the Governor holds office during the pleasure of the President. There is no fixed term for the Governor's tenure.
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Qualifications and Oath:
- Article 157: Outlines the qualifications required for a person to be appointed as Governor.
- Article 159: Specifies the oath or affirmation that the Governor must take before entering upon his/her office.
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Powers and Functions:
- Article 160: Grants the Governor the power to grant pardons, reprieves, respites, or remissions of punishment or to suspend, remit, or commute the sentence of any person convicted of any offense against a law relating to a matter to which the executive power of the state extends.
- Article 161: Grants the Governor the power to grant pardons, reprieves, respites, or remissions of punishment or to suspend, remit, or commute the sentence of any person convicted of any offense against a law to which the executive power of the state does not extend.
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Discharge of Duties:
- Article 163: Provides for the Council of Ministers to aid and advise the Governor in the exercise of his/her functions, except in cases where he/she is required to exercise his/her functions in his/her discretion.
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Special Provisions for Certain States:
- Article 371A to 371J: Contains special provisions related to the Governors and administration of certain states like Nagaland, Assam, Manipur, Andhra Pradesh, Sikkim, Mizoram, Arunachal Pradesh, Goa, and Maharashtra.
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Emergency Powers:
- Article 356: Gives the President the power to assume to himself/herself all or any of the functions of the Government of a state and all or any of the powers vested in or exercisable by the Governor of the state if he/she is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution.
| Subject | President | Governor |
|---|---|---|
| Nature of Office | Head of state; highest constitutional authority | Head of state government; represents the President at the state level |
| Appointment and Tenure | Elected by an electoral college | Appointed by the President; holds office at the pleasure of the President |
| Powers and Functions | Ceremonial and symbolic; acts on advice of Council of Ministers | Executive and discretionary; bound by advice of Council of Ministers in most cases, with some discretionary powers |
| Jurisdiction | Extends to entire territory of India | Limited to the respective state of appointment |
| Emergency Powers | Can declare state of emergency under Article 352 | Limited emergency powers under Article 356 |
The office of Governor in India has its roots in the colonial era, particularly during British rule.
Here's a brief historical background:
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Colonial Era:
- During British rule, India was divided into provinces, presidencies, and princely states. Each province or presidency was headed by a Governor, appointed by the British Crown or the Governor-General of India.
- The Governors served as representatives of the British government and were responsible for administering their respective territories on behalf of the colonial administration.
- The powers and functions of Governors varied depending on the specific administrative structure of each province or presidency.
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Post-Independence Period:
- With India's independence in 1947 and the adoption of the Constitution in 1950, the office of Governor underwent significant changes but retained its essential role in the Indian administrative setup.
- The Constitution of India established a federal system of government with a clear division of powers between the central government and the state governments.
- The office of Governor was created to represent the President at the state level and to act as the constitutional head of the state government.
- Governors were appointed by the President of India and were entrusted with various executive, legislative, and discretionary powers as outlined in the Constitution.
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Evolution of the Role:
- Over the years, the role of the Governor has evolved in response to changing political dynamics and constitutional interpretations.
- While the Governor's primary function is to ensure the proper functioning of the state government and to act as a link between the state and the central government, Governors have also been vested with certain discretionary powers, particularly in situations such as the appointment of the Chief Minister, dissolution of the state legislature, and imposition of President's Rule in case of a breakdown of constitutional machinery.
- The relationship between Governors and state governments has sometimes been marked by tensions, particularly in situations where Governors have been perceived to act in a partisan manner or to exceed their constitutional mandate.
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Legal Framework:
- The powers and functions of the Governor are enshrined in the Constitution of India, primarily in Articles 153 to 162.
- Various judgments of the Supreme Court of India have also contributed to the delineation of the Governor's powers and the scope of his/her discretion in different contexts
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For Prelims: Indian polity and Governance- Constitution, Rights Issues.
For Mains: Governance, Constitution, Polity, Constitution of India- features, amendments, significant provisions and basic structure, Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies.
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Previous Year Questions
Prelims 1. Consider the following statements: (UPSC CSE 2018) 1. No criminal proceedings shall be instituted against the Governor of a State in any court during his term of office. 2. The emoluments and allowances of the Governor of a State shall not be diminished during his term of office. Which of the statements given above is/are correct? (a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2 Answer (c) The correct answer is Both 1 and 2. According to Article 361: 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. (Hence statement 1 is correct) 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. According to Article 158: The Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First Schedule, and if a member of either House of Parliament or of a House of the Legislature of any such State is appointed Governor, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as Governor. The Governor shall not hold any other office of profit. The Governor shall be entitled without payment of rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and, until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule. The emoluments and allowances of the Governor shall not be diminished during his term of office. (Hence statement 2 is correct) Mains 1.Discuss the essential conditions for exercise of the legislative powers by the Governor. Discuss the legality of re-promulgation of ordinances by the Governor without placing them before the Legislature. (2022) |
