SC to examine governor's immunity in molestation case: What is Article 361?

West Bengal molestation row: Raj Bhawan staff member has accused Governor CV Ananda Bose of sexual harassment, filed plea challenging immunity

The Supreme Court of India has agreed to examine a plea filed by a woman staff member of the West Bengal Raj Bhawan, who has accused Governor CV Ananda Bose of sexual harassment. The plea challenges the immunity granted to the governor of a state under Article 361 of the Indian Constitution and seeks several directions and investigations.

What is Article 361?

The President of India and governors of state receive immunity from legal proceedings over the duration of their term in office. This immunity is granted under Article 361. The aim of the Article is to ensure that they are not answerable to any court for the exercise and performance of their official powers and duties, nor for any acts done in the course of these duties.

 

> Criminal proceedings: No criminal cases can be initiated or continued against them, and no arrest or imprisonment orders can be issued by any court under Clause (2) of Article 361.
 

> Civil proceedings: The Article mandates a two-month notice for any civil proceedings related to personal acts

Additionally, Clause (3) of Article 361 restricts any arrest or imprisonment orders during their term.

What is the role of a governor in India?

Governors in India have the responsibility of upholding and enforcing the Constitution and laws. According to Articles 153 and 154 of the Constitution, governors ensure the smooth functioning of state governments within the constitutional framework.

Article 154 specifies, “The executive power of the State shall be vested in the governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution of India.”

Can governors’ powers be reviewed?

Governors in India possess discretionary constitutional powers, as defined by the Constitution, which they can exercise in specific situations.
 

These powers enable governors to make critical decisions in the executive realm, particularly during times of political or administrative uncertainty.
 

Although these powers are constitutionally granted, they are subject to judicial review to ensure they are exercised within legal and proper bounds.

Who will be reviewing Article 361?

The Supreme Court’s order came in response to a plea by a contractual woman employee of West Bengal Raj Bhawan, who has alleged molestation by Governor CV Ananda Bose and wrongful confinement by officials there.
 

Senior advocate Shyam Divan, representing the woman, argued that an investigation is essential and cannot be deferred until the governor leaves office. The plea contends that the immunity under clause 2 of Article 361 should not bar the investigation, especially given the time-sensitive nature of such probes.
 

The bench, comprising Chief Justice D Y Chandrachud and justices JB Pardiwala and Manoj Misra, issued a notice to the West Bengal government and granted the woman liberty to include the central government as a party. The court also sought the assistance of Attorney General R Venkataramani in dealing with the constitutional issue.

Background of the case

The contractual woman employee of Raj Bhavan lodged a complaint with the Kolkata Police alleging that she was molested by Governor Bose on April 24 and May 2. She claimed that the Governor called her on the pretext of offering a better job but instead sexually harassed her within the premises of Raj Bhavan during working hours.
 

She accused Governor Bose of orchestrating a ‘ridiculous drama’ to deflect attention from his actions, and asked police to review CCTV footage from the premises to back her allegations.
 

An FIR was also registered against the Officer on Special Duty (OSD) and other Raj Bhavan staff, accusing them of restraining and pressuring the woman from lodging the sexual harassment complaint against the Governor. The Calcutta High Court stayed the proceedings in May.

What did the CCTV camera footage show?

Footage from two CCTV cameras at the main (north) gate on May 2 was shown to a select group. It must be noted that the victim could not be spotted in the second footage.

What is the Petition Seeking?

The woman petitioner is seeking the following:

Call for immediate investigation: The petitioner argues that victims should not be rendered ‘remediless’, forced to wait until the governor leaves office, which could delay justice and impact the trial.

Framing specific guidelines: The plea asks for directions to frame specific guidelines under which governors enjoy immunity from criminal prosecution.

Police probe: A thorough investigation by the West Bengal Police into the allegations of sexual harassment.

Protection and compensation: Protection for her and her family, and compensation from the government for her loss of reputation and dignity due to the state machinery’s failure to protect her identity.

Questioning absolute immunity: The plea contends that the immunity under Article 361 should not be absolute, allowing illegal acts or acts that violate fundamental rights under Part III of the Constitution. It argues that this immunity should not impair police powers to investigate the offence or name the perpetrator in a complaint or FIR.
 

The Supreme Court’s decision to examine the immunity granted under Article 361 in light of these allegations could have significant implications for the interpretation of constitutional protections for high office holders and the accountability mechanisms in place for addressing misconduct.

(With agency inputs)