Supreme Court to look at immunity to Governors under Article 361

“The petition raises the issue as regards the interpretation of Clause (2) (of Article 361), more particularly when criminal proceedings would be construed to have been instituted in terms of the governing provisions of law,” the Bench, which included Justices J B Pardiwala and Manoj Misra, said.

The Bench, in its order, noted that the issue pertains to the “ambit of the protection which is afforded inter alia to the Governor under Article 361(2)”, and asked the woman to make the Union of India a party to the petition.

Article 361(2) states: “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”.

The court also sought the assistance of Attorney General R Venkataramani in dealing with the constitutional issue.

Senior Advocate Shyam Divan, appearing for the woman whose name has been redacted from judicial records, said: “It cannot be that there is no investigation. Evidence has to be gathered right now. It cannot be deferred indefinitely till the Governor demits office.”

The woman, in her plea, said the immunity granted to Governors under Clause 2 of Article 361 cannot bar the investigation and underlined the need for a timely probe.

Saying that she was left “remediless”, “due to the blanket immunity bestowed under Article 361” to the Governor, she urged the court to “frame guidelines and qualifications to the extent the immunity given under Article 361 can be exercised by the office of… Governor”.

“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,” she said in her plea.

The petitioner contended that the objective behind granting immunity under Article 361 was to insulate the head of the state from possible exposure to malicious publicity of his involvement in any offence instituted during his term of office.

The Supreme Court will have to decide whether sexual harassment and molestation form part of “discharging or performing duties by the Governor” to grant him blanket immunity under Article 361, she said.

The woman has also sought a probe into the case by the West Bengal Police and direction to the state government to provide protection for her. Accusing the Governor of revealing her identity, she has sought compensation from the state government “for loss of reputation and dignity” suffered by her and her family.

The Bench, on Friday, issued a notice to the West Bengal government, seeking its response on the matter.

In her complaint to the Kolkata Police, the woman had alleged that she was sexually harassed by Bose when he called her to Raj Bhavan under the pretext of offering her a job on April 24 and May 2.

In May, the Calcutta High Court stayed proceedings in a First Information Report (FIR) against the Officer on Special Duty (OSD-II) to Bose. The OSD-II was accused of restraining the woman and putting pressure on her to refrain from filing a sexual harassment complaint against the Governor.

The woman then approached the Supreme Court earlier this month.