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Synopsis

A Chief Justice of India led bench of the Supreme court today has directed to implead Union of India in the plea filed by a woman employee of the West Bengal Raj Bhawan for investigation into her allegations of sexual harassment made against C V Ananda Bose.

The bench also comprising Justices Pardiwala and Manoj Misra has asked the Attorney General for his assistance on the issues involved.

Senior Advocate Shyam Divan appeared for the petitioner today and drew the court's attention towards the issue of framing guidelines and qualification to the extent of the immunity enjoyed by the Governor under Article 361 of the Constitution.

No criminal proceedings can be instituted or continued against the President, or the Governor of a state, in any court during their term of office in accordance with Article 361 (2) of the Constitution.

It has been asserted that 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. 

"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," the petition filed under Article 32 stated.

The plea said in fact, the petiitoner woman also wrote a complaint to Raj Bhavan highlighting her grievances only to be subjected to humiliation in the form of inaction by concerned authorities and being made a mockery of in the media and termed as a political tool, without any safeguards for her self-respect.

No person is above the law and under the garb of the constitutional immunity, the Governor is by no means permitted to act inappropriately and inflict gender violence when every other citizen of the country is prohibited to do the same, which directly impinged on the fundamental rights guaranteed to every individual including the petitioner herein under the Constitution, she has contended.

“Making the petitioner, a victim in the present matter a liar, while ensuring that the accused/Hon’ble Governor, proceeds to himself give his own self a clean chit. Such unfettered exercise of power shall set a wrong precedent leaving sexual victims remediless which shall be in complete violation of the constitutional scheme,” the plea said.

It also contended the immunity under Article 361 (1) of the Constitution, does not take away the power of the apex court to examine the validity of the action including on the ground of ‘malafides’.

The petitioner has written a complaint on May 2, 2024 to the Officer in Charge, Raj Bhavan, Kolkata on the basis of the instances, accusing the Governor of sexually harassing her on the pretext of offering her a better job.

"Such questionable conduct not only threatens to defeat and subvert the very fundamentals and basic foundation of our Constitution, including the rule of law, but further proceeds to infringe upon the rights of citizens of the State who may be victims of sexual misconduct at the hands of such constitutional authorities," her plea said.

It said this court ought to consider that the Constitution does not confer unfettered and absolute power on any authority, including the Parliament, to violate the basic elements of the Constitution which include Article 14 and Article 21, and whether the impediment under Article 361 of the Constitution arises only when the acts are done in "exercise and performance of their powers and duties” or is it a blanket immunity, without any checks and balances.

"The Police authorities, have conveniently washed their hands from the petitioner herein, brushing aside the allegations in such a callous and cavalier manner, owing to the immunity so granted under Article 361 of the Constitution," it claimed.

It also contended the callous conduct of the Governor has caused disclosure of her identity of the petitioner, yet again a punishable offence under the erstwhile Indian Penal Code and the new Bharatiya Nyaya Sanhita and her family’s reputation has also been shattered.

Case Title: XXX Vs State of West Bengal