Is the West Bengal Governor immune from criminal prosecution amid sexual harassment allegations? | Explained

Kolkata: West Bengal Governor C.V. Ananda Bose during an interview with PTI, in Kolkata, on Saturday, April 6, 2024. | Photo Credit: PTI

The story so far: West Bengal Governor C.V. Ananda Bose on May 5 wrote to Raj Bhavan staff and asked them to ignore any communication from the Kolkata Police in connection with a sexual harassment complaint filed against him by a female Raj Bhavan employee. On May 2, the Governor also banned the entry of police personnel and Minister of State for Finance, Chandrima Bhattacharya, into the Raj Bhavan. As per the order, the West Bengal Minister’s entry was barred for “defamation and anti-constitutional media statements.”

The move came a day after the Kolkata Police constituted an eight-member special inquiry team to look into the allegations of molestation against the Governor. The team headed by Deputy Commissioner (Central) Indira Mukherjee has sought CCTV footage and summoned a few people working in Raj Bhavan.

In the letter to the Raj Bhavan staff, Mr. Bose pointed out that no criminal proceedings can be instituted against a Governor during their term of office. “Since the Governor has been granted constitutional immunity from any criminal proceedings being instituted or continued against him, it logically follows that the police cannot investigate/inquire into the matter in any manner whatsoever. To say that the inquiry/investigation of the police could continue even during the tenure of the Governor though no court can take cognisance of the final report, would be in derogation of the objective and essence of Art. 361 of the Constitution of India,” the statement stipulated.

The development has triggered outrage in the State’s political circles, with Chief Minister Mamata Banerjee reprimanding the Governor’s alleged actions. “The tears of the woman broke my heart,” Ms. Banerjee said. The ruling party — the Trinamool Congress— has also called the incident “appalling and unthinkable.”

Constitutional privilege

Article 361 of the Constitution stipulates that the President, the Governor or the Rajpramukh of any 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.”

The provision also envisages two important sub-clauses — (1) 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.

Past precedents

In 2009, Andhra Pradesh Governor N D Tiwari resigned on “health grounds” after allegations of his involvement in a sex scandal emerged. Similarly, in 2017, Meghalaya Governor V Shanmuganathan tendered his resignation after sexual harassment allegations were levelled against him. Nearly 100 Raj Bhavan staff had demanded his removal for “seriously compromising” the dignity of the gubernatorial office.

Also Read: Meghalaya Governor V. Shanmuganathan resigns

No ‘life-long immunity’

The constitutional immunity granted to governors is, however, not lifelong and is limited only to the Governor’s term in office. In 2017, the Supreme Court revived the charges against BJP leaders L K Advani, Murli Manohar Joshi, and Uma Bharti in the criminal conspiracy case pertaining to the 1992 demolition of the Babri Masjid. It directed the Court of Sessions in Lucknow to frame the additional charge of criminal conspiracy against them. However, the verdict barred the framing of charges against former Uttar Pradesh Chief Minister Kalyan Singh who was then serving as 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 top Court said. Soon after Mr. Singh’s term ended, the Central Bureau of Investigation (CBI) in February 2022 moved the sessions court in Lucknow to summon him to face trial in the case.

In 2016, days after ordering Arunachal Pradesh Governor J.P. Rajkhowa to respond as to why he recommended President’s rule in the sensitive border State, a five-judge Constitution Bench of the Supreme Court recalled the order saying that it made a “mistake” by not realising that Governors have “complete immunity” and are not answerable to Courts for acts done in their official capacity. The notice had been issued on a petition by Rajesh Tacho, chief whip of the Congress Legislature Party, contending that the Governor and the Centre “played [a] fraud on the Constitution” by imposing the President’s rule.

‘Absolute immunity’ against criminal proceedings

In 2015, the Madhya Pradesh High Court quashed the FIR registered against Madhya Pradesh Governor late Ram Naresh Yadav for his alleged involvement in the Vyapam scam on the ground that he enjoyed ‘absolute immunity’ against criminal prosecution. The Court held that the expression “whatsoever” following the expression “criminal proceedings” in clause (2) of Article 361 would include within its ambit an FIR. Per contra, the State government argued that an FIR is registered by the police officer and, therefore, is not a criminal proceeding instituted before the Court within the meaning of Article 361 (2) of the Constitution.

The High Court reasoned that such immunity is granted to insulate “the Head of a State from any possible exposure to malicious publicity of his involvement in any offence instituted during his term of office.” At the same time, it clarified that such immunity will not impair the police’s powers to investigate the offence including the recording of the Governor’s statement. “….the immunity in Article 361 (2) or 361 (3) does not extend to recording of statement of the Head of a State by the police in connection with investigation of a crime, if it is so essential. The police, however, must take all salutary precautions and observe circumspection while recording statement of the petitioner in the course of investigation, so that the majesty of the office of the Governor of the State is not undermined in any manner,” the verdict underscored.

Soon after, a Supreme Court Bench headed by former Chief Justice of India (CJI) H.L. Dattu agreed to hear a batch of petitions seeking Mr. Yadav’s removal as well as formulation of guidelines for the removal of Governors if they are found to be involved in corrupt practices while being in office.

Also Read:Vyapam scam: SC notice to Centre, MP Governor on plea for his removal

No bar on judicial review

The Supreme Court in Rameshwar Prasad v. Union of India (2006), while deliberating upon the legality of the Governor recommending Presidential rule in Bihar, underscored that the personal immunity guaranteed under Article 361 of the Constitution extends to the exercise and performance of all or any powers and duties by him. It added that such immunity also extends to cases where “allegations of personal mala-fides” have been made against the Governor.

However, the Court added an important caveat — such gubernatorial immunity does not imply that the actions of the Governor are beyond the ambit of judicial review. “..Such immunity does not take away power of the Court to examine validity of the action including on the ground of mala fides,” it asserted.  

The verdict further clarified that a government supporting the actions of the Governor is permitted to defend him before a judicial forum by referring to the material on record or filing an affidavit. However, whether Governors can claim immunity for extra-constitutional gestures was not an issue of concern in the case.

Reiterating this, the apex Court in Nabam Rebia and Bamang Felix v. Dy. Speaker (2016) ruled that the discretionary powers of the Governor are amenable to judicial review.