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What are the Immunities available to the President of India?

8 min read

By Samriddhi Thakar

Introduction

Last year Russian President Vladimir Putin signed legislation that grants former President’s lifetime immunity once they leave office.[1] The office of the President is much esteemed, and the Constitution of India imparts to it various immunities and privileges.

The term immunity has been defined as an exemption from legal proceedings or liability.

Article 361 of the Indian Constitution grants immunity or protection to the President and the governor of the country. Immunity simply means that these high-dignity personnel are exempted by the courts regarding some matters in furtherance of any duty or performance carried out by them.

Before understanding the immunities available to the President, let us understand something about the President.

Thus, this article deals with the immunities available to the President of India.

Who is the President of India?

Article 52 of the Indian Constitution states that there shall be a President of India. The President is the head of the state. He is also the first citizen of India and Commander-in-Chief of the Indian Armed Forces.

He is a part of Union Executive along with the Vice-President, Prime Minister, Council of Ministers, and Attorney- General of India. Furthermore, he is the constitutional head of the parliamentary system of government. He represents the nation but does not rule it. He is the titular head of the country.

Mr. Ram Nath Kovind is the 14th and the current President of India. Born in a small hut with big dreams he completed his law degree from DAV College, Kanpur. Before starting with the political journey, he was a lawyer for 16 years and practiced in Delhi High Court as well as the Supreme Court of India until 1933.

Before becoming the President, he was governor of Bihar from 2015 to 2017 and was also a member of Rajya Sabha. He took the oath as the 14th President of India on 25 July 2017.

Former President of India was Mr. Pranab Mukherjee. He was the 13th President of India. He was a senior leader in Indian National Congress and was Union Finance Minister of India from 2009-2012. He was also awarded the Bharat Ratna in 2019 by the current President of India, Ram Nath Kovind.

How is the President of India elected?

The President of India is elected by indirect election. It means that people cannot vote for him directly but the representatives of the people vote for him.

Article 54 of the Indian Constitution states that the President is elected by an electoral college in accordance with the system of proportional representation by means of the single transferrable vote.

The President is elected by members of both Houses of Parliament, elected members of the Legislative Assembly of the State, and the elected members of the Legislative Assemblies of Union Territories of Delhi and Pondicherry.[2]

The electoral college comprises of legislators, but all the legislators are not eligible to be electors in the Presidential election. They are grouped into two categories:

Elected Members: These are the members who are selected after the respective process of election for Lok Sabha, State Legislative Assemblies and Rajya Sabha.

Nominated Members: These are the members who are elected by the President or Governor without undergoing the process of election. Such members include the following members:

  • 12 members who have special knowledge or experience in literature, social service, science and art.
  • 2 members to represent Anglo-Indian community.
  • 1 member by the State Government if it feels their community is underrepresented.

However, the elected members are only eligible for the election of the President. The nominated members are ineligible. Further, the voting for Presidential election takes place by secret ballot.

What is the term of office of President of India?

Article 56 states that the term of office of the President is generally five years from the date he enters office. He is also eligible for re-election and can serve any number of terms. However, the President can be removed from the post for violation of the Constitution before the expiry of his term by the process of impeachment.

His office may be terminated within the term of five years if he gives resignation in writing addressed to the Vice-President of India.

What are the qualifications required for election as President of India?

Article 58 of the Indian Constitution states the qualifications which a person should possess to become a President. In order to be qualified for election as President, a person must-

  • Be a citizen of India;
  • Has completed the age of thirty-five years;
  • Be qualified for election as a member of the House of People.
  • Must not hold any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of the said Government.[3]

What are the immunities available to the President of India?

The President being the head of the state enjoys certain immunities so that he can discharge his duties without any encumbrances.

Article 361 of the Indian Constitution lays down the immunities available to the President. The immunities are as follows:

  • Not answerable to any Court

The President of the state is not 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.

The conduct of the President can be reviewed only if either House of Parliament designates or appoints any court or tribunal or any other body to investigate the charges under Article 61.

  • Criminal proceedings cannot be instituted or continued against the President.
  • No court can issue an arrest warrant or imprison the President during his term of office.
  • Exception – A civil case due to the acts done in personal capacity.

A civil proceeding can be instituted against the President during his term of office if the act is done or alleged to be done by him in his personal capacity, whether before or after he entered upon the office of President.

Further, two months prior notice is provided to the President stating the nature of the proceeding, cause of action, the details of the other party including name, description, and place of residence, and the relief claimed by the other party.[4]

Why are immunities given to the President?

The President is the head of the country. He has to take some of the most important decisions for the welfare of the country. His basic duty is to protect and preserve the Constitution of India.

The President has multiple roles ranging from approving the bill, looking after the smooth functioning of the governments, diplomatic, military powers, authorities to make rules and regulations on various matters to pardoning the offenders.

Thus, to discharge his duties without any encumbrances certain immunities are given to the President. In absence of these immunities, it would be very difficult for him to carry out his duties efficiently. Article 14 of the Indian Constitution states “Equality for all the citizens.”

However, Article 361 of the Indian Constitution is an exception. The President of India enjoys certain privileges and immunities to govern the country adeptly.

Pardoning powers of the President

Article 72 of the Indian Constitution confers pardoning powers upon the President. It states that the President has right to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence-

  • In all cases where the punishment or sentence is by a court Martial;
  • In all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
  • In all cases where the sentence is a sentence of death.[5]

In simple words, it means that the President has power to forgive the accused. This act of forgiving is called as “pardon”. Once an accused is pardoned, he is free from all the charges and innocent in the eyes of law.

However, the powers of President are always debated. The Supreme Court has therefore laid down provisions for controlling the pardoning powers of the President and has also allowed judicial review of the cases where the accused is pardoned.

In one such case of Maru Ram Etc. Etc Vs. Union of India,[6] it was held by the Supreme Court that the pardoning power given under Article 72 of the Indian Constitution is to be exercised by the President on the advice of the Central Government.

Similarly, in the case of Kuljeet Singh Alias Ranga Vs. Lt. Governor, Delhi and Anr,[7] the power given under Article 72 of the Indian Constitution was discussed. The court in this case held that the Article 72 has power to pardon the accused.

However, the use of the power should be in accordance to the facts and circumstances of the case. The Court further said that if any case is pardoned by the President, it is subject to judicial review.

What are the legal provisions regarding impeachment of the President of India?

The Constitution of India has conferred certain immunities to the President which exempts him from civil, criminal, arrest and imprisonment proceedings. However, these are not absolute immunities. The President can be removed from his position through the process of impeachment for violating the Constitution of India by the Parliament of India.

Article 61 of the Indian Constitution lays down the process of impeachment. Impeachment is a quasi-judicial procedure in Parliament.

The process begins in either of the two houses of the Parliament. A House creates a charge against the President. The charges are mentioned in a notice which must be signed by not less than one-fourth of the total number of members of that House. The notice is then sent to the President and taken up for consideration after 14 days.

The impeachment resolution is then passed by a majority of not less than two-thirds of the total membership of the House. The other House conducts an investigation of the charges.

Further, the President has the right to appear and to be represented in such an investigation.

But if the second House also approves the charges created by a special majority, the President stand impeached. Subsequently, he has to vacate the office with effect from the date of passing of the resolution.[8]

Conclusion

The President is one of the most important and powerful heads of our country. Even though he is the titular head, he has many powers in his hands. From defending the Constitution of India and keeping checks on the activities of both houses, he has various roles to play.

According to Dr. B.R Ambedkar, “Under the draft constitution, the President occupies the same position as the King under the English Constitution. He is the head of the state but not of the Executive. He represents the Nation but does not rule the Nation. He is the symbol of the Nation. His place in the administration is that of a ceremonial device on a seal by which the nation’s decisions are made known.” [9]

Thus, he has been conferred upon various privileges and enjoys immunities to work efficiently without any hindrances.

References

  1. Putin signs bill giving Presidents lifetime immunity, Dawn, available at: dawn.com/ (last visited on 19 June 2021)
  2. The Constitution of India, Article 54
  3. The Constitution of India, Article 58
  4. The Constitution of India, Article 361
  5. The Constitution of India, Article 72
  6. Maru Ram Etc. Etc Vs. Union of India, 1980 AIR 2147, 1981 SCR (1)1196
  7. Kuljeet Singh Alias Ranga Vs. Lt. Governor, Delhi and Anr, AIR 1981 SC 2339
  8. Impeachment, available at: cleartax.in (last visited on 19 June 2021)
  9. President of India, available at: https://en.wikipedia.org/wiki/President_of_India (last visited on 19 June 2021)