Amid sexual harassment complaint against West Bengal Governor, a look at how Article 361 provides immunity

The provision also has two crucial sub-clauses: (1) that no criminal proceedings whatsoever shall be initiated or continued against the President, or the Governor of a State, in any court during the term of his office. (2) 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.

Senior Advocate Devadatt Kamat told the Indian Express: “The Constitution contemplates a complete bar against prosecuting the Governor. He cannot be named an accused. The police can act only after the Governor ceases to be in office, which is when either the Governor resigns or he no longer enjoys the confidence of the President.”

In the landmark 2006 ruling in Rameshwar Prasad v Union of India, that outlined the immunity enjoyed by the Governor “even on allegation of personal malafides,” the Supreme Court held that “the position in law, is that the Governor enjoys complete immunity.”

“Governor is not 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 Court said. The ruling is indeed not for criminal complaints but for exercising discretionary constitutional powers.

However, there are several precedents where criminal action was halted till a Governor completed his term in office.

In 2017, the Supreme Court allowed fresh charges of criminal conspiracy against BJP leaders L K Advani, Murli Manohar Joshi, Uma Bharti in the 1992 demolition of the Babri Masjid. However, the trial did not take place for former UP Chief Minister Kalyan Singh since he was then the Governor of Rajasthan.

“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,” the Supreme Court had said.

In 2017, then Meghalaya Governor V Shanmuganathan, following a nudge from the Centre, resigned after allegations of sexual harassment levelled by Raj Bhavan staff. In 2009, then Andhra Pradesh Governor N D Tiwari also resigned “on health grounds” following an alleged sex scandal in Raj Bhavan.