Governors cannot be held accountable in court for their actions or decisions while in office “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.”
CV Ananda Bose, the Governor of West Bengal has been accused of sexually harassing a women staffer at the Raj Bhavan. But he has banned the entry of police inside his residence, which is the Raj Bhavan and the police literally can’t do anything about it.
The Governor of a state is a constitutional post appointed by the President through a warrant under their hand and seal. And according to Article 361 of the Indian Constitution, the president and governors have certain immunities. These include:
1. They cannot be held accountable in court for their actions or decisions while in office “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.”
2. No criminal cases can be filed against them “in any court” during their term.
3. They cannot be arrested or imprisoned during their term.
4. Civil proceedings against them for personal actions, whether before or after he entered his office, can only be initiated after a two-month notice, specifying the nature of the proceedings and relief sought.
However, the Governor has dismissed the accusations as politically driven. He said he would not succumb to orchestrated stories and added that the truth would prevail.
The Supreme Court in 2006 had clarified that while Article 361 grants a Governor “complete immunity,” there are exceptions. “Such immunity does not take away the powers of the Court to examine the validity of the action including on the ground of mala fides,” the court had ruled. Even the police can register an FIR against the president or any governor even when they are in office.
In 2017, Article 361 came to the rescue of then Rajasthan governor and former UP Chief Minister Kalyan Singh in the criminal conspiracy case related to demolition of Babri Masjid, when the Supreme Court revived the charges against L K Advani, Vinay Katiar, Uma Bharati, Sadhvi Rithambara, Murli Manohar Joshi and Vishnu Hari Dalmia. The apex court had asked the Court of Sessions in Lucknow to frame the additional charge of criminal conspiracy against them. However, with respect to Kalyan Singh, the Supreme Court had asserted, “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.”
In 2017, Meghalaya Governor V. Shanmuganathan resigned after facing sexual harassment charges.
NOTE: Any immunity under Article 361 is not lifelong. “It is only during the tenure of a Governor or the President that the immunity applies. It is not lifelong immunity.”
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