The Supreme Court on Friday sought response from the Central and the West Bengal governments on a plea by a former woman staffer of State Raj Bhawan, who has alleged sexual harassment by the Governor CV Ananda Bose, challenging the immunity granted to the Governor under Article 361 of the Constitution from criminal prosecution in any court during his term of office.

Granting liberty to the petitioner woman staffer to implead the Central government, Chief Justice DY Chandrachud heading a bench also comprising Justice JB Pardiwala and Justice Manoj Misra sought the assistance of the Attorney General R Venkataramani in the matter.

The bench posted the matter for hearing after three-weeks.

Appearing for the petitioner, senior advocate Shyam Divan told the bench that Article 361 was not a bar to the investigation. “It cannot be that there is no investigation. Evidence has to be gathered right now. It cannot be deferred indefinitely,” Divan told the bench pointing to the distinction between investigation and immunity from prosecution under Article 361.

The petitioner woman staffer of Raj Bhawan has sought direction to West Bengal police machinery to carry out investigation in the matter and record the statement of the Governor and the framing of guidelines on how the immunity given under Article 361 can be exercised by the Governor.

At the outset of the hearing, the bench asked “You have not impleaded Union of India as a party” to which Divan replied “I have not to implead Union of India as a party.”

The petition urged the top court to decide “whether sexual harassment and molestation forms part of the discharging or performing duties by the Governor,” so as to grant him a blanket immunity under Article 361 of the Constitution.

Article 361(2) of the Constitution reads “criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any court during his 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 unexplainable during the trial, and render the entire procedure a mere lip service, without any justice to the victim herein,” the plea stated.

The victim petitioner has 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 remediles despite the offence against her person, and therefore is constrained to approach this apex court directly,” States the petition.

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.

The petition says that 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,” says the petition.

The victim petitioner 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 the working hours.

Though an FIR was registered against the officer on special duty (OSD) and other Raj Bhavan staff, the Calcutta High Court in May had stayed the proceedings.

The FIR accused the OSD and other staff of restraining and pressurising the woman from lodging the alleged sexual harassment complaint against the Governor.