PART 19: Constitution Of India

PART XIX: MISCELLANEOUS

Article 361: Protection of President and Governors…

This article provides significant legal immunity to the President and Governors while they are in office, to protect the dignity of their posts from frivolous lawsuits.

• Clause (1):
  • Plain English: The President or a Governor is not personally answerable to any court for how they exercise their official powers and duties.
  • First Proviso: This immunity for official acts does not block the process of impeaching the President (under Article 61).
  • Second Proviso: This immunity only protects the President/Governor personally. It does not stop any person from filing a lawsuit against the Government of India or the State Government for an act done by that government.
  • Real-World Example: The Governor (on the advice of the Cabinet) signs a bill into law. You cannot sue the Governor personally (“A.B. vs. The Governor”) for signing it. You can, however, sue the “State of Maharashtra” to challenge the validity of the law itself.
• Clause (2):
  • Plain English: This is an absolute immunity. No criminal proceedings whatsoever can be started or continued against a President or Governor in any court during their term of office.
  • Real-World Example: If a person holding the office of Governor is alleged to have committed a crime, the police cannot file an FIR or a charge sheet, and a court cannot try them, for as long as they remain Governor. The proceedings can only begin after they leave office.
• Clause (3):
  • Plain English: No court can issue an order to arrest or imprison a President or a Governor during their term of office.
  • Real-World Example: This is an absolute physical immunity, tied to the office.
• Clause (4):
  • Plain English: This deals with civil proceedings (like a lawsuit for money or property) against a President or Governor for an act done in their personal capacity (not an official act).
  • The Rule: You can sue them for a personal matter, but only if two conditions are met:
    1. You have delivered a written notice to their office explaining the case.
    2. You have waited for two months after delivering that notice before filing the case.
  • Real-World Example: You had a property dispute with a person before they became Governor. To continue your lawsuit against them, you must deliver a formal legal notice to the Governor’s office (Raj Bhavan) and wait two months before the High Court will hear your case.

Article 361A: Protection of publication of proceedings of Parliament and State Legislatures.

• Clause (1):
  • Plain English: This provides legal immunity to the media (newspapers, and by extension, TV and web). No person can be held liable in any court (e.g., for defamation) for publishing a “substantially true report” of the proceedings of Parliament or a State Legislature.
  • The Exception (Malice): This protection is lost if the report was published “with malice.”
  • Proviso: This protection does not apply to publishing reports of a “secret sitting” of the House.
  • Real-World Example: An MP, in a Lok Sabha debate, makes a speech accusing a businessman, “Mr. X,” of being a “thief” (the MP is protected by Article 105). A newspaper prints an article saying, “MP Y, in his speech, called Mr. X a thief.” Under this article, Mr. X cannot sue the newspaper for defamation, because it was a “substantially true report” of what was said in Parliament.
• Clause (2):
  • Plain English: This article clarifies that this protection also applies to reports broadcast on the radio (and by extension, TV and internet streaming).

Article 361B: Disqualification for appointment on remunerative political post.

• Plain English: This is a follow-up to the Anti-Defection Law (Tenth Schedule). It says that if an MLA or MP is disqualified from the House because they “defected” (switched parties), they are also disqualified from being appointed to any “remunerative political post” (like a Minister, or the paid Chairperson of a government corporation).
• The Duration: This disqualification lasts for the entire period they are disqualified, until the date they contest and win an election again.
• Real-World Example: An MLA from Party A “defects” to Party B. The Speaker disqualifies them. Party B forms the new government. It cannot appoint this disqualified person as the “Minister for Transport” or the (paid) “Chairman of the State Housing Board.” They must wait, contest a by-election, and win it to become eligible for such a post.

Article 362: [Rights and privileges of Rulers of Indian States.]

• Plain English: This was the original article that guaranteed the “privy purses” (payments) and special privileges to the former Maharajas and Princes.
• Status: This article was REPEALED and REMOVED from the Constitution by the 26th Amendment Act in 1971. It is no longer in effect.

Article 363: Bar to interference by courts in disputes arising out of certain treaties, agreements, etc.

• Clause (1):
  • Plain English: This article puts up a total legal barrier (“bar”) that stops all courts, including the Supreme Court, from hearing any dispute related to the original treaties, covenants (“sanads”), or agreements that were signed between the Government of India and the rulers of the old Princely States before the Constitution began.
  • Real-World Example: The descendant of a former Maharaja cannot file a case in the Supreme Court claiming that the government violated the 1947 “Instrument of Accession” or the 1949 “Merger Agreement” signed by their ancestor. The Supreme Court is constitutionally barred from hearing the case.

Article 363A: Recognition granted to Rulers of Indian States to cease and privy purses to be abolished.

• Plain English: This is the article (added by the 26th Amendment, 1971) that formally abolished the concept of royalty in India.
• (a) It declares that as of 1971, the President no longer recognizes any person as a “Ruler” (Maharaja, Nizam, etc.) or their successor. The legal status is gone.
• (b) It declares that the “privy purse” (the tax-free payment) is abolished, and all rights to receive it are extinguished.
• Real-World Example: This amendment is what ended the special, constitutionally-protected status and payments for all of India’s former royal families.

Article 364: Special provisions as to major ports and aerodromes.

• Plain English: This gives the President a special power to issue a public notification that exempts any “major port” (like Mumbai Port, Chennai Port) or “aerodrome” (major airport) from the provisions of any law made by Parliament or a State Legislature. The President can also modify the law’s application to that port/airport.
• Real-World Example: For reasons of national security, the President could issue an order stating that certain state-level labor laws shall not apply within the customs-bonded area of the Indira Gandhi International Airport, Delhi.

Article 365: Effect of failure to comply with, or to give effect to, directions given by the Union.

• Plain English: This is one of the most powerful articles in the Constitution. It provides the legal justification for imposing President’s Rule (Article 356).
• The Rule: If a State government has “failed to comply with” any “directions” (formal orders) given to it by the Union government (under any article, like 256 or 257), the President is legally entitled to “hold” (conclude) that a situation has arisen where the government of that state cannot be carried on in accordance with the Constitution.
• Real-World Example: The Union government (under Art. 257) issues a formal “direction” to a state to protect its railway lines. The state government, as a mark of protest, refuses. The President can use this specific failure as the legal ground to declare President’s Rule under Article 356 and dismiss the state government.

Article 366: Definitions.

This article is the official “dictionary” of the Constitution. (This is a thorough breakdown as requested, covering all clauses).

• (1) “agricultural income”: Means whatever the Income Tax law says it means.
• (2) “an Anglo-Indian”: A person whose father (or any male ancestor in the male line) was of European descent, but who is domiciled in India and was born here to resident parents.
• (3) “article”: An article of this Constitution.
• (4) “borrow”: Includes raising money by selling annuities.
• (5) “clause”: A clause of the article (e.g., “Article 366, Clause 5”).
• (6) “corporation tax”: A tax on the income of companies.
• (7) “corresponding Province/State”: The old British province or Princely State that corresponds to the new state (e.g., “Madras Province” corresponds to the “State of Tamil Nadu”).
• (8) “debt”: Includes any liability to repay capital or any liability under a guarantee.
• (9) “estate duty”: A tax on the total value of property left by a person after their death (now abolished).
• (10) “existing law”: Any law, rule, or regulation made before the Constitution started (Jan 26, 1950) by a valid authority.
• (11) “Federal Court”: The highest court in India before the Supreme Court was created.
• (12) “goods”: Includes all materials, commodities, and articles.
• (13) “guarantee”: Includes old (pre-1950) obligations to cover financial losses of an undertaking.
• (14) “High Court”: Any court that the Constitution recognizes as a High Court.
• (15) “Indian State”: A territory recognized before 1950 by the government as a “Princely State.”
• (16) “Part”: A Part of this Constitution (e.g., “Part III: Fundamental Rights”).
• (17) “pension”: Includes any kind of retirement payment, including gratuity or return of a provident fund.
• (18) “Proclamation of Emergency”: An emergency declared under Article 352.
• (19) “public notification”: A notification in the Gazette of India (for Union) or the Official Gazette (for a State). This is how laws are formally published.
• (20) “railway”: Clarifies that this term does not include a local tramway or a small railway line that is only within one state (unless Parliament says otherwise).
• (21): [Omitted by the 7th Amendment, 1956]
• (22) “Ruler”: Means the person who was recognized as a “Ruler” or “Maharaja” before the 26th Amendment (1971) abolished the title.
• (23) “Schedule”: A Schedule to this Constitution (e.g., “Seventh Schedule”).
• (24) “Scheduled Castes”: The communities specified in the President’s list under Article 341.
• (25) “Scheduled Tribes”: The communities specified in the President’s list under Article 342.
• (26) “securities”: Includes stocks.
• (26A): [Omitted by the 43rd Amendment, 1977]
• (27) “sub-clause”: A sub-part of a clause (e.g., “Article 366 (29A)(a)”).
• (28) “taxation”: Includes any kind of tax, whether general, local, or special.
• (29) “tax on income”: Clarifies this includes a “tax in the nature of an excess profits tax.”
• (29A) “tax on the sale or purchase of goods”: This is a very important definition, added by the 46th Amendment to close tax loopholes. It “deems” the following to be “sales” so they can be taxed:
  • (a) Transfer of goods not by a contract (e.g., a bank seizes a car and sells it).
  • (b) “works contract”: The transfer of goods (like cement, steel, bricks) used in the execution of a construction or works contract. (e.g., When a builder constructs a flat, this clause allows the state to tax the value of the materials used as a “deemed sale”).
  • (c) “hire-purchase”: Delivering goods on a hire-purchase or installment plan. (e.g., You buy a TV on EMI. The tax is levied on the full price at the time of delivery, not on each EMI).
  • (d) “transfer of the right to use goods”: This is a tax on leasing or renting. (e.g., You rent a car from Zoomcar. This is a “deemed sale” of the right to use the car, and the state can tax that rental fee).
  • (e) Supply of goods by a members’ club. (e.g., You “buy” a drink at your own private club. This is “deemed” a sale and is taxable).
  • (f) Supply of food or drink in a restaurant. (e.g., When you eat at a restaurant, this clause “deems” the service part of the bill to also be part of the “sale” of food, making it taxable. This was the foundation for “Service Tax” on food and is now part of GST).
• (30) “Union territory”: A territory listed in the First Schedule (like Delhi, Ladakh).

Article 367: Interpretation.

• Clause (1):
  • Plain English: This states that the “General Clauses Act, 1897,” which is the master “dictionary” for all laws made by Parliament, should also be used to interpret the meaning of words in the Constitution.
• Clause (2):
  • Plain English: Any reference in the Constitution to an “Act” (a law) made by Parliament or a State Legislature also includes a reference to an “Ordinance” (a temporary law) made by the President or Governor.
  • Real-World Example: If a “law” of Parliament is in conflict with a state “Ordinance,” the same rules of repugnancy (Art. 254) apply.
• Clause (3):
  • Plain English: For the Constitution, a “foreign State” means any country other than India.
  • Proviso: The President can issue an order to declare that a specific country (e.g., a Commonwealth country like the UK or Canada) is not to be treated as a “foreign State” for certain purposes (like recruitment to certain services).