Recent Incident:

Governor of West Bengal CV Ananda Bose has been accused of sexual harassment by a contract employee at the Raj Bhavan in Kolkata. She complained to the Kolkata police station on Hare Street. But because of the constitutional immunity bestowed upon his position, Bose is immune from criminal prosecution while holding office.

This female contractual employee, who resides in the Governor’s House domestic quarters and has worked at Raj Bhavan since 2019, has accused Bose of “inappropriately touching” her. She went to the police inside the Governor’s House and claimed that Bose had molested her, which brought the issue to light.

She described the two occasions she had been the victim of sexual harassment. According to her, the Governor asked her to bring her resume to an appointment on April 19. On April 24, at approximately 12:45 p.m., he summoned her to his office, where they had a conversation before he made eye contact. She made it out of the conference room. He contacted her again on May 2, she mentioned. She brought her supervisor to the conference room with her, feeling uneasy. Following some time spent talking about work, the governor requested the supervisor to go. He carried on the chat about her promotion, saying he would give her a call at night and asking her to tell no one. He reached out to touch her, but she declined.

The complaint was confirmed by Indira Mukherjee, the Deputy Commissioner of Central Division, who stated that a complaint had been filed at the police outpost at around 5 p.m. and then submitted to the Hare Street police station. She stated that an investigation is presently being conducted.

On the other hand, the Attorney General of India has been consulted regarding possible legal recourse and advise, according to a statement released by Raj Bhavan on behalf of the Governor. Furthermore, the statement stated that this issue is politically motivated and that it is conducted in an unapproved and illegal manner to please political superiors during elections. The Governor also banned the police admission and investigating officials to enter the Raj Bhavan premises.

What does Article 361 of the Constitution say?

    “(1) The President, or the Governor or Rajpramukh of a 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:

Provided that the conduct of the President may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under article 61:

Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State.

(2) 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.

(3) 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.”

Basically, President, State Governors, or Rajpramukh cannot be questioned or sued for anything they do on the job. Additionally, while they are in office, no one may bring or maintain a criminal prosecution against them. Furthermore, they are immune to arrest or imprisonment while serving as governor or president.

What is judiciary’s stance on Article 361 of the Constitution?

In Rameshwar Prasad & Ors vs. Union of India & Anr (AIR 2006 SC 980) it was decided by the Apex Court that the governor of a state enjoys absolute immunity pursuant to Article 361 of the Indian Constitution. In the exercise of their powers, discharge of duties, or performance of acts incidental to such duties or authority, they are immune from judicial scrutiny. However, it is imperative to note that while the governor is shielded from judicial accountability, the court retains jurisdiction to review the validity and interpretation of their decisions.

On 19th April 2017, in the case of State (through) Central Bureau of Investigation v.

Shri Kalyan Singh (former CM of UP) & Ors.[Criminal Appeal No. 751 of 2017], it was ordered by the Supreme Court that Mr. Kalyan Singh, as the Governor of Rajasthan, would be granted protection under Article 361 of the Constitution for the term of his office. It was pointed out, nevertheless, that after he left the office of governor, accusations would be made against him, and court cases would start.

However, it is pertinent to also take into consideration the observation made by the Madhya Pradesh High Court while quashing FIR Against Governor Ram Naresh Yadav in Vyapam Scam. The division bench observed regarding Article 361 that the immunity and privilege afforded to the Governor only apply during their term of office. However, this immunity does not restrict the police’s authority to investigate criminal cases involving other individuals. The judges emphasized that the police can still record statements from the Governor if necessary for an investigation. The HC explained that Article 361 (2) or 361 (3) does not grant immunity to the Governor from providing statements to the police in connection with a criminal investigation if it is deemed essential. Nevertheless, the division bench emphasized that the police must exercise caution and discretion when recording statements from the Governor to ensure that the dignity of the Governor’s office is upheld.

Conclusion:

Previously Governors of Meghalaya and Andhra Pradesh resigned promptly amid similar accusations of sexual harassment. Here, the immunity granted by Article 361 makes the current issue involving West Bengal Governor CV Ananda Bose difficult to resolve. In cases when State heads are accused of sexual harassment, only further judicial interpretation will clarify the relationship between constitutional immunity and accountability.

-By Adv. Deeksha Rai