Does Article 361 Bar Investigation Against Governor? Supreme Court Seeks AG's Assistance On WB Governor's Immunity In Molestation Case

The Supreme Court on Friday (July 19) sought the assistance of the Attorney General for India in a petition filed by a former woman employee of West Bengal Raj Bhavan challenging the immunity claimed by the State's Governor CV Ananda Bose against the investigation in the molestation complaint levelled by the woman against the Governor.

The petitioner contended that the immunity granted to Governors from criminal proceedings as per Article 361 of the Constitution cannot bar investigation. 

The bench comprising Chief Justice of India DY Chandrachud, Justices JB Pardiwala and Manoj Misra granted liberty to the petitioner to implead the Union of India in the petition filed under Article 32 of the Constitution.

Senior Advocate Shyam Divan, appearing for the petitioner, submitted that Article 361 of the Constitution cannot be a bar against investigation. "It cannot be that there is no investigation. Evidence has to be gathered right now. It cannot be deferred indefinitely," Divan submitted. He requested for notice on Prayer (c) and (d) sought in the petition. Prayer (c)  seeks to direct the State of West Bengal through State Police machinery to carry out investigation in the matter and record the statement of the Governor.

Prayer (d) seeks the framing of guidelines on how the immunity given under Article 361 can be exercised by the Governor.

Issuing notice in the petition, the bench observed :

"The petition raises the issue pertaining to the ambit of the protection which is afforded to the Governor under clause (2) of Article 361 of the Constitution, according to which "no criminal proceedings whatsoever shall be prosecuted or continued against the Governor of the State in any court during his term of office". The petitioner raises the issue as regards the protection of Clause (2), more particularly, when criminal proceedings would be construed to have been constituted."

Advocate Aastha Sharma accepted notice on behalf of the State of West Bengal.

The petitioner has argued that Article 361 does not bar police investigation against the Governor. She also argued that the Governor cannot claim blanket immunity in respect of criminal acts. Allowing such immunity would force her to wait for the Governor to demit office to initiate the trial, which is unreasonable and violative of her fundamental rights, the petitioner contended.  

As per Article 361 immunity is granted to Governors of States from being answerable to any court for "the exercise and performance of the powers and duties of his office" or any act done in furtherance of the same. Article 361 (2) and (3) grant immunity to the Governor from any criminal proceedings and arrest during his term of office. 

Additionally, the petitioner has prayed for the protection of her and her family's life, compensation for loss of reputation and directions to the State Police to conduct a probe into the matter. 

It may be noted on July 1, Bose addressed a letter to the Department of Personnel & Training (DOPT) seeking the removal of the Kolkata Police Commissioner and Deputy Commissioner for investigating the alleged sexual harassment allegations which would violate his constitutional immunity. 

Background 

The genesis of the case relates to an FIR filed by a former contractual employee of the Raj Bhavan, Kolkata against the Governor and three other staff members including the Officer-On-Special Duty (OSD) of the Governor. While Bose was alleged of molestation, the staffers were alleged of wrongfully restraining the victim in a room of the Raj Bhavan. 

On May 24, the Calcutta High Court temporarily stayed a probe by the West Bengal police against the Officer on Special Duty to the Governor (OSD) and other Raj Bhavan staffers.

It may also be noted that Bose has moved the Calcutta High Court for defamation against the WB Chief Minister Mamta Banerjee concerning the molestation allegations. Recently, the High Court restrained Mamata Banerjee from making defamatory comments against the Governor.

The following reliefs have been sought in the petition :

a) Issue writ/writs including a writ in the nature of Mandamus or any other appropriate writ, order or direction, to the State of West Bengal through Director General of Police to provide protection and security to the Petitioner and her family;

b) Issue writ/writs including a writ in the nature of Mandamus or any other appropriate writ, order or direction, directing the State of West Bengal to compensate the Petitioner for loss of reputation and dignity suffered by the Petitioner and her family due to the failure of the State machinery in protecting the identity of the victim;

c) Issue writ/writs including a writ in the nature of Mandamus or any other appropriate writ, mandating the State of West Bengal through State Police machinery to carry out investigation, including right of the State Police to record the statement of the Hon'ble Governor by the police in connection with investigation of a crime, if it is so essential;

d) Frame guidelines and qualification to the extent the immunity given under Article 361 can be exercised by the office of Hon'ble Governor 

Case Details : XXX Versus THE STATE OF WEST BENGAL W.P.(Crl.) No. 295/2024

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