Constitutional immunity for governors under SC lens amid WB Raj Bhawan controversy

A bench, led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, sought the assistance of attorney general R Venkataramani to adjudicate on the matter, terming it an “important” issue

The Supreme Court on Friday agreed to examine the validity of the constitutional immunity granted to governors under Article 361, which protects them from court proceedings and prosecution, both civil and criminal, during their term of office. The decision followed a petition filed by a woman staff member of the West Bengal Raj Bhawan, who alleged sexual harassment by governor CV Ananda Bose.

The petition highlights the potential injustice faced by victims under the current constitutional provision. (File photo)

A bench, led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, sought the assistance of attorney general R Venkataramani to adjudicate on the matter, terming it an “important” issue.

The bench, also comprising justices JB Pardiwala and Manoj Misra, also issued notice to the state of West Bengal, and gave the petitioner liberty to add the Union of India as a party to the matter.

Senior counsel Shyam Divan, appearing for the petitioner, stressed that despite the constitutional protection to governors under Article 361, investigation in criminal cases must commence.

“In this case, a very serious incident has taken place, and it cannot be that no investigation will happen at all. Whatever may be the consequences, investigation has to begin and evidence will have to be gathered. It cannot be deferred indefinitely,” argued Divan.

At this, the bench proceeded to record Divan’s contentions regarding the need to define the ambit of the immunity granted to governors under Article 361 and consequently, allow the investigation to proceed in the current case notwithstanding the constitutional protection to Bose. It fixed the matter for hearing next after three weeks.

Advocate Astha Sharma accepted the notice on behalf of the West Bengal government.

The Supreme Court’s decision to scrutinise the constitutional immunity of governors marks a critical juncture in addressing the balance between the protection afforded to high constitutional functionaries and the fundamental rights of individuals to access courts for justice. The outcome of this case could have far-reaching implications for the interpretation of Article 361 and the accountability of governors in India.

The petition by the complainant challenges the immunity conferred upon governors under Article 361 of the Constitution, arguing that such protection should not extend to acts of sexual harassment and molestation. The petitioner urges the court to clarify whether these acts can be considered part of the governor’s official duties, thus entitling him to immunity under Article 361.

“This court has to decide whether a victim like the petitioner can be rendered remediless, with the only option being to wait for the accused to demit his office, which delay will then be inexplainable during the trial, and render the entire procedure a mere lip service, without any justice to the victim herein,” the plea, filed through advocate Udayaditya Banerjee, states.

The petition highlights the potential injustice faced by victims under the current constitutional provision, questioning if they must endure the trauma and stigma while waiting for the governor to leave office before seeking justice. The plea calls for a thorough investigation by the West Bengal police and the establishment of clear guidelines regarding the immunity of governors under Article 361.

The petition also contends that while a civil suit against a governor can be initiated after a two-month notice, no such provision exists for criminal proceedings, effectively leaving victims without recourse. “The object of Article 361 cannot be to impair the power of the police in such situations,” the plea argued.

It further maintains that the immunity provided by Article 361 should not be absolute, especially in cases involving illegal acts or violations of fundamental rights.

“Such powers cannot be understood to be absolute so as to enable the Hon’ble Governor to do acts which are illegal or which strike at the root of Part III of the Constitution. Moreover, the said immunity cannot impair the police’s powers to investigate the offence or even naming the perpetrator in the complaint/FIR, despite specific averments to that effect,” the petition submits.

According to the complaint, governor Bose allegedly called her on April 24 and May 2 under the pretext of offering her a better job, only to sexually harass her within the premises of Raj Bhavan during working hours. The plea emphasises the disparity in how the governor, while claiming to perform his official duties, dismisses the allegations as an “engineered narrative,” leaving the victim marginalized and stigmatized.

The petitioner has also requested state protection and compensation for the trauma she has endured.

This development follows a May order by the Calcutta High Court staying proceedings in a first information report (FIR) against the Officer on Special Duty (OSD-II) to the governor. The OSD-II was accused of restraining and pressuring the victim to refrain from filing a sexual harassment complaint against the governor.