Sexual harassment case: SC agrees to examine Raj Bhavan employee's plea challenging immunity to WB Governor

New Delhi: The Supreme Court on Friday agreed to examine a plea filed by a woman staff member of the West Bengal Raj Bhawan, who had alleged sexual harassment by Governor CV Ananda Bose, challenging the immunity granted to the Governor under Article 361 of the Constitution.
A bench of Chief Justice of India DY Chandrachud and Justices JB Pardiwala and Manoj Misra sought Attorney General for India R Venkataramani's assistance in the matter and issued notice in the plea filed by the woman staffer.
The bench granted liberty to the petitioner to implead the Union of India in the petition and the West Bengal government accepted notice on the plea. The bench sought the response within three weeks.
Senior advocate Shyam Divan, appearing for the petitioner, said that Article 361 of the Constitution cannot be a bar against investigation.
He said, "It cannot be that there is no investigation. Evidence has to be gathered right now. It cannot be deferred indefinitely."
The petition has asked the apex court to decide "whether sexual harassment and molestation form part of discharging or performing duties by the Governor", so as to grant him a blanket immunity under Article 361 of the Constitution.
According to Article 361(2) of the Constitution, no criminal proceedings can be instituted or continued against the President, or Governor of a State, in any court, during their term of office.
"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," the plea stated.
She claimed such an immunity cannot be absolute and asked the top court to frame guidelines and qualification to the extent of immunity enjoyed by the office of the Governor.
"The petitioner is aggrieved by the sexual advances/harassment made by the constitutional authority - the Governor, State of West Bengal in the premises of Raj Bhavan itself. However, due to the blanket immunity bestowed under Article 361, Constitution, petitioner is left remediless despite the offence against her person, and therefore is constrained to approach this apex court directly," the petition stated.
The plea said that the immunity provided by Article 361 should not be absolute, particularly in cases involving illegal acts or violations of fundamental rights.
It said the immunity cannot impair the police's powers to investigate the offence or even naming the perpetrator in the complaint/FIR, despite specific averments to that effect.
"Such powers cannot be understood to be absolute so as to enable the Governor to do acts which are illegal or which strike at the root of Part III of the Constitution. Moreover, the said immunity cannot impair the police's powers to investigate the offence or even naming the perpetrator in the complaint/FIR, despite specific averments to that effect," it added.
She has also sought a thorough investigation into the case by West Bengal police and protection and security to her and her family by West Bengal Police. The woman further sought compensation for loss of reputation and dignity suffered by her and her family due to the failure
of the State machinery in protecting her identity.
As per her complaint, the Governor had called her on April 24 and May 2 on the false pretext of offering a better job only to sexually harass within the premises of Raj Bhavan during working hours.
Though an FIR was registered against the officer on special duty (OSD) and other Raj Bhavan staff, the Calcutta High Court had in May had stayed the proceedings.
The FIR accused the OSD and other staff of restraining and pressuring the woman from lodging the alleged sexual harassment complaint against the Governor.