The Supreme Court on Friday sought the assistance of Attorney General R Venkataramani on a petition filed by a former woman employee of the West Bengal Raj Bhavan challenging the immunity claimed by Governor CV Ananda Bose against probe in a 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 of Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra issued notice on the petition and observed that the plea raised an important issue pertaining to the ambit of the protection afforded to the Governor under clause (2) of Article 361 of the Constitution.
As per clause (2) of Article 361, no criminal proceedings whatsoever should be prosecuted or continued against the Governor of a State in any court during his term of office.
The petitioner raised the issue regarding the protection of Clause (2), more particularly, when criminal proceedings would be construed to have been constituted, noted the Bench, while granting liberty to the petitioner to implead the Union of India in the plea.
Appearing for the petitioner, Senior Advocate Shyam Divan submitted that Article 361 of the Constitution cannot be a bar against investigation. Evidence has to be gathered right now. It cannot be deferred indefinitely.
He requested for notice on two prayers sought in the petition. Prayer (c) sought direction to the State of West Bengal through State Police machinery to carry out an investigation into the matter and recording of the Governor’s statement.
Prayer (d) sought framing of guidelines on how the immunity given under Article 361 could be exercised by the Governor.
Advocate Aastha Sharma accepted notice on behalf of the State of West Bengal.
Filed under Article 32 of the Constitution, the petition claimed that Article 361 did not bar police investigation against the Governor. it said that a Governor could not claim blanket immunity in respect of criminal acts.
The petitioner claimed that allowing such immunity would force her to wait for the Governor to demit office to initiate the trial, which was unreasonable and violative of her fundamental rights.
As per Article 361, immunity is granted to the State Governors 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) grants immunity to the Governor from any criminal proceedings and arrest during his term of office.
The petitioner further prayed for the protection of her and her family’s life, compensation for the loss of reputation, and directions to the State Police to conduct a probe into the matter.
On July 1, Bose addressed a letter to the Department of Personnel & Training (DOPT) seeking removal of the Kolkata Police Commissioner and the Deputy Commissioner for investigating the alleged sexual harassment allegations, which would violate his constitutional immunity.
The matter pertained 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 alleged 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.
Bose moved the Calcutta High Court for defamation against West Bengal Chief Minister Mamata Banerjee concerning the molestation allegations. The High Court recently restrained Banerjee from making defamatory comments against the Governor.
The petition sought issuing of a writ in the nature of Mandamus or any other appropriate writ, order or direction to the State of West Bengal through the Director General of Police to provide protection and security to the petitioner and her family.
It further sought issuance of writs including a writ in the nature of Mandamus or any other appropriate writ, order or direction, ordering the State of West Bengal to compensate the petitioner for the 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.
The plea also sought issuance of 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 the right of the State Police to record the statement of the Governor by the police in connection with the probe, if it was essential.
The petitioner urged the Court to frame guidelines and sought qualification to the extent the immunity given under Article 361 can be exercised by the office of the Governor.