Protection of the President and Governors.

Write short notes on :

(1) Protection of the President and Governors.

(2) Protection of publication of proceedings of Parliament and State Legislature.

(3) Disputes arising out of treates, sanads, agreements, etc.— Bar to jurisdiction of Courts.

Ans. (1) Protection of the President and Governors—Constitutional system have looked upon the office of head of the State with respect.. Law elevates the office of the head of the State above all democratic canons, not as a devil but as a symbol of true democracy. In the office of head of the State is combined the unity of the nation. The king does no wrong, but not because he is the symbol of God on earth, but because he is the functional head of all truth and justice in the realm. It is so not in figurative sense but as a legal necessity or conveinence. The office is kept from fear and placed above reproach to enable it to function a guardian, the unbiased protector of public wealth. If the head of the State could be called upon to appear as any private citizen before a court of law to answer for his conduct, he would start behaving as any private citizen would and become the victim as well as instigator or intrigues swayed by party and personal passions, not impersonal duty. Against this background, Article 361 of the Indian Constitution provides that the President or the Governor of a State shall not be answerable in any court for the exercise and performance of these powers and duties of his office or for any act done, purporting to be done by him in the exercise and performance of these powers and duties. This provision does not restrict the right of any person to bring appropriate proceedings against the Government of India or the Government of a State. The immunity thus assured to the President is not however an absolute immunity. His conduct may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the investigation charge of impeachment. 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. No process for the arrest or imprisanment of the president or the Governor of a State shall issue any court during his term of office. No civil proceedings in which rlief is claimed against the presidentor 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 until the expiration of two months next after notice in writing has been delivered to him 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 instituted and the relief which he claims. (Art. 361).

(2) Protection of publication of proceeding of Parliament and state Legislature.—The 44th Amendment Act, 1978,  has inserted a new Article 361-A which gives protection of publication of proceedings of Parliament or State Legislature. According to clause (1) of this Article 361-A no person shall be liable to any proceedings, civil or criminal, in any court in in respect of the publication in a newspaper of a substantial true report of any proceedings of either House of Parliament or the Legislative Assembly, or, as the case may be, either House of the Legislature, of a State, unless the publication is proved, to have been made with malice. But nothing in this clause shall apply to the publication of any report of the proceedings of a secret sitting of either House of Parliament, or as the case may be, either House of the Legislature of a State. The clause (2) further provides that clause (1) shall apply in relation to reports or matters broad-cast by means of wireless telegraphy as part of any programme or service provided by means of a broadcasting station as it applies in relation to report or matters published in a newspaper.

(3) Disputes arising out of treaties, sanads, agreements, etc. Bar to jurisdiction of Courts—Notwithstanding anything in this Constitution but subject to the power of the President to consult the Supreme Court (under Article 143), neither the Supreme Court nor any other courts shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of this Constitution by any Ruler of an Indian State with the Government of the Dominion of India or any of its predecessor Government and which is or has been continued in operation after such commencement, or in any dispute in respect of any right or any liability or obligation arising out of any provision of this Constitution relating to any such treaty, agreement, covenant, engagement, sanad or other similar instrument. “Indian states” means any territory recognised before the commencement of this Constitution by His Majesty or the Government of the Dominion of India as being such a State ; and ” Ruler” includes the prince, chief or other person recognised before such commencement by his Majesty or the Government of the Dominion of India as the Ruler of any Indian State.