New Delhi: As a complaint of sexual harassment was filed against West Bengal Governor C.V. Ananda Bose, the spotlight is back on Article 361 of the Constitution which grants immunity to governors against being named as an accused in any criminal case.
The allegations came to light late Thursday after a woman staffer at Raj Bhavan in Kolkata filed a complaint at the Hare Street police station. According to reports, she has alleged that Bose ‘inappropriately touched’ her on 24 April after which he traveled to Kerala, his home state, to cast vote. The second episode allegedly took place after his return, prompting her to approach the Kolkata Police.
In response, the governor issued a statement saying, “Truth shall triumph. I refuse to be cowed down by engineered narratives. If anybody wants some election benefits by maligning me, God Bless them. But they cannot stop my fight against corruption and violence in Bengal.”
“Truth shall triumph. I refuse to be cowed down by engineered narratives. If anybody wants some election benefits by maligning me, God Bless them. But they cannot stop my fight against corruption and violence in Bengal.”
— Raj Bhavan Kolkata (@BengalGovernor) May 2, 2024
The Trinamool Congress has called the incident “appalling and unthinkable”. “The sanctity of Raj Bhavan, a symbol of our constitutionality, has been tarnished. Hours before PM Narendra Modi was supposed to arrive at Raj Bhavan to spend the night, a woman was allegedly molested by the Governor under the false pretext of job,” the party wrote in a post on ‘X’, formerly Twitter.
“Such despicable behavior must be condemned in the strongest terms. Justice must be delivered swiftly for the victim – no excuses, no delays!” the post added.
Appalling and unthinkable! The sanctity of Raj Bhavan, a symbol of our constitutionality, has been tarnished.
Hours before PM Narendra Modi was supposed to arrive at Raj Bhavan to spend the night, a woman was allegedly molested by the Governor under the false pretext of job.… pic.twitter.com/YcCp16Yeu3
— All India Trinamool Congress (@AITCofficial) May 2, 2024
The police are yet to register a case against Bose, and are taking legal consultations on the way ahead.
All eyes are, therefore, set at Article 361 of the Constitution. What does the provision say, and what have the courts said about it? ThePrint explains.
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What Article 361 says
Titled ‘Protection of President and Governors and Rajpramukhs’, Article 361 unequivocally says that the President, the Governor or the Rajpramukh of any 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”.
The provision also goes on to bar institution or continuation of any criminal proceedings against the President or the Governor in any court, during his term of office.
“No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office,” sub-clause 3 of Article 361 adds.
What has Supreme Court said
In a landmark judgment in 2006, the Supreme Court had clarified that while Article 361 grants a Governor “complete immunity”, there are exceptions.
“In terms of Article 361, the Governor enjoys complete immunity. Governor is not answerable to any Court for exercise and performance of powers and duties of his office or for any act done or purporting to be done by him in the exercise of those powers and duties. However, such immunity does not take away power of the Court to examine validity of the action including on the ground of mala fides,” the court had ruled.
However, Constitutional expert and former secretary general of Lok Sabha P.D.T Achary told ThePrint that this judgment deals with Article 361(1) of the Constitution, and not clause 2 of Article 361. Clause 1 of Article 361 talks about anything done by the Governor in performance of powers and duties of his office.
“That judgment is confined to Article 361(1),” Achary asserted.
Clause 2 of Article 361 says, “No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any court during his term of office.”
Achary pointed out that the immunity under Article 361(2) is “absolute”, pointing to the usage of the word “whatsoever” in the clause. “No criminal action can be taken against the Governor. No criminal case can be instituted against the Governor or the President. It’s an absolute bar,” he explained.
‘Not lifelong immunity’
In 2017, Article 361 came to the rescue of then Rajasthan governor Kalyan Singh in the criminal conspiracy case related to demolition of Babri Masjid, when the Supreme Court revived the charges against L.K. Advani, Vinay Katiar, Uma Bharati, Sadhvi Ritambara, Murli Manohar Joshi and Vishnu Hari Dalmia. The apex court had asked the Court of Sessions in Lucknow to frame the additional charge of criminal conspiracy against them.
However, with respect to Kalyan Singh, the Supreme Court had asserted, “Mr. Kalyan Singh, being the Governor of Rajasthan, is entitled to immunity under Article 361 of the Constitution as long as he remains Governor of Rajasthan. The Court of Sessions will frame charges and move against him as soon as he ceases to be Governor.”
As for sexual harassment allegations, in 2017, Meghalaya Governor V. Shanmuganathan resigned after facing sexual harassment charges.
Achary told ThePrint that the immunity under Article 361 is not lifelong. “It is only during his tenure that the immunity applies. It is not lifelong immunity,” he explained.
(Edited by Tony Rai)
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