There are certain privileges enjoyed by different portfolios of serving to the Government of India for upholding the honor of the capacity of their office. Basically, these privileges serve the office and are bestowed upon it but is enjoyed by the person holding that office. These privileges are enjoyed so that they can discharge their duties under that office free from any encumbrances. These privileges are mostly enjoyed by the constitutional portfolios, not administrative but are subject to exceptions.
Who has the authority to arrest?
Section 41 to 44 of the Code of Criminal Procedure, 1973 deals with arrest.
An arrest can be made by 3 people:
- Police- It is an executive law enforcement agency
- Private Person- Any civilian can make an arrest if a non-bailable cognizable offence is been committed in their presence.
- Magistrate- Both executive and judicial magistrate have the power to arrest if an offence is been committed in their presence.
Which portfolios in India enjoy immunity from arrest?
- Armed Forces
- Foreign Diplomat
1961 Vienna Convention on Diplomatic Relations
The 1961 Vienna Convention on Diplomatic Relations Grants diplomats immunity from the criminal, civil and administrative jurisdiction of the country in which the diplomat is hosted.
Who can Arrest President of India?
The president of India is elected by the state legislative members of all states of our country. Our constitution is the world’s largest written constitution in India. The constitution provides several exemptions to the president of India according to their act classified as the personal and official. These rules are also applicable to the Governors of the states. They i.e. the Governors and President cannot be held for any legal actions during the time of their office for anything done by them during the duties that they did by using the official powers. Their acts can be reviewed either by the courts or by the tribunals or any other review committees established by the parliament for the impeachment process.
According to Article 361 of the Indian constitution
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.
For any personal act done by the president or governors no criminal proceedings could be done by anyone, they cannot be arrested or imprisoned. This is applicable only for the tenure of their office period as the president or governors. After their tenure, these immunities are not applicable. However, The civil proceedings can happen during their office tenure. It is applicable by giving notice before two months. But after the impeachment process, the persons who enjoy the posts of governor and president all are treated as common people.
Section 133 of the Code of Civil Procedure
133. Exemption of other persons
(1) The following persons shall be entitled to exemption from personal appearance in court, namely;—
(i) the President of India;
(ii) the Vice-President of India;
(iii) the Speaker of the Houses of the People;
(iv) the Ministers of the Union;
(v) the Judges of the Supreme Court;
(vi) the Governors of States and the Administrators of Union Territories;
(vii) the Speakers of the State Legislative Assemblies;
(viii) the Chairman of the State Legislative Councils;
(ix) the Minister of States;
(x) the Judges of the High Courts.
Section 45 of the CrPC
Protection of members of the Armed Forces from arrest clearly says that a member serving in the armed forces shall be arrested for anything purported by him in the discharge of his duties only on the consent of central government.
- Judges- A judicial officer can be arrested for an offence under intimation to the district judge or the high court. If immediate arrest of a judicial officer of the subordinate judiciary is necessary, a technical or formal arrest may be effected. Arrest should be immediately communicated to the district judge and Chief Justice of high court. Arrested judicial officer will not be taken to police station without prior directions from the district judge. There should be no hand-cuffing of the arrested judicial officer. But if he turns violent, and there is a danger to life and limb, he can be handcuffed with intimation to district judge as well as to the CJ of the HC concerned.
- Prime Minister/Chief Minister- If PM/CM is found guilty under the law, then the high court and supreme court can call and do the proceedings. Cases can be filed against the sitting Prime Minister , and he/she can even be called for cross examination by the Indian Courts.
If found guilty by courts , irrespective of being the sitting Prime Minister he/she has to abide by whatever sentence the court proclaims.
- Members of the Lower house or Upper House- Parliamentary Privilege is a Legal Immunity enjoyed by members of certain legislatures.
If we talk about India here, freedom from arrest has been limited to Civil causes and has not been applied to arrest on criminal charges or to detention under the Preventive Detention Act. Also there is no privilege if arrest is made under S.151 Criminal Procedure Code.
So, Detention and Arrest of MLAs/MPs/ is different as compare than Ordinary Citizens.
Guidelines on the Arrest of a Member of Parliament/Legislative Assembly
- The Speaker of the House must be informed if an M.P/MLA/MLC is arrested on a criminal charge or detained under an executive order of a magistrate.
- Any transfer from the place of custody should be notified to the Speaker/Chairperson of the house of which the arrested person is a member.
- The police should not arrest any member of legislature, nor should they serve any legal process, civil or criminal, without obtaining the permission of the Speaker/Chairperson
There is a clear demarcation as to what all rights are absolute and what are not. The immunity has been bestowed upon very thoughtfully and at the same time is been taken away from other important portfolios very thoughtfully keeping there roles in mind and subject to exceptions and difference in the procedure of there arrest from any common citizen. It has all been framed in such a way to avoid misuse which would lead to abuse of the sovereignty of constitution of India.