PERSONS NOT LIABLE UNDER THE INDIAN PENAL CODE

Who Is Not Liable to Punishment Under the Indian Penal Code?

As a general rule, the criminal law of India applies equally to every person within the country. This follows from the principle of equality before law in Article 14 of the Constitution. The Indian Penal Code, 1860 has now been replaced by the Bharatiya Nyaya Sanhita, 2023, which came into force on 1 July 2024, but the classes of persons discussed above remain relevant for students and for readers who want to understand the limits of criminal jurisdiction. This note explains why the persons listed above are treated differently and where else the law gives special protection.

The President and the Governors

Article 361 of the Constitution protects the President and the Governor of a State from answering to any court for the exercise and performance of the powers and duties of their office. No criminal proceedings can be started or continued against them during their term of office, and no process for their arrest or imprisonment can be issued from any court during that term. Civil proceedings in respect of a personal act can be started only after two months’ written notice. The protection is linked to the term of office and exists to let the constitutional head perform his or her functions without interruption. Courts have also held that this immunity does not prevent a court from examining the legality of the action itself.

Foreign sovereigns, ambassadors and diplomats

Under international law, a foreign sovereign and accredited diplomatic representatives enjoy immunity from the criminal jurisdiction of the host country. In India this is given effect through the Diplomatic Relations (Vienna Convention) Act, 1972. The criminal procedure law also requires the consent of the Central Government before a ruler of a foreign State, an ambassador or an envoy can be prosecuted. The immunity extends to the family members of a diplomat who form part of the household. It is the immunity of the sending State, which can be waived by that State, and a person who abuses it can be declared persona non grata and asked to leave.

Alien enemies, foreign armies and warships

Alien enemies during a state of war, and the members of a foreign army or public armed ship that is present in India with the permission of the Government, are generally outside the ordinary criminal jurisdiction of Indian courts. They are dealt with under international law, the law of war and the terms agreed between the States concerned.

Other protections to remember

The law also gives limited protection to other persons, though not complete immunity. Members of Parliament and State Legislatures are protected under Articles 105 and 194 for what they say in the House, but not for other crimes. A child below seven years of age cannot be held guilty of an offence, and a child between seven and twelve is protected if he or she lacked sufficient maturity to understand the nature and consequences of the act. These rules appear in the general exceptions of the criminal code.

Immunity is not the same as impunity. It is a narrow exception that depends on the office, the status or the capacity of the person. If you have a specific question about criminal liability, speak to an advocate who can examine the facts and the law in force.