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Article 361 Of The Constitution

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ARTICLE 361 OF THE CONSTITUTION

Even as a complaint alleging sexual harassment has been filed in Kolkata against West Bengal Governor C V Ananda Bose, Constitutional immunity bars the police from naming the Governor as an accused or even investigating the case.

Article 361 of the Constitution that deals with immunity to the President and the Governors states that they “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…”

SUB CLAUSES

The provision also has two crucial sub-clauses:

  1. That 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.

IS THE IMMUNITY EXTENDED TO PERSONAL MALA FIDES ALSO?

The Constitution contemplates a complete bar against prosecuting the Governor. He cannot be named an accused. The police can act only after the Governor ceases to be in office, which is when either the Governor resigns or he no longer enjoys the confidence of the President.

In the landmark 2006 ruling in Rameshwar Prasad v Union of India, that outlined the immunity enjoyed by the Governor “even on allegation of personal mala fides,” the Supreme Court held that “the position in law, is that the Governor enjoys complete immunity.”

PRECEDENTS

  • In 2017, the Supreme Court allowed fresh charges of criminal conspiracy against BJP leaders L K Advani, Murli Manohar Joshi, Uma Bharti in the 1992 demolition of the Babri Masjid. However, the trial did not take place for former UP Chief Minister Kalyan Singh since he was then the Governor of Rajasthan.
  • In 2017, then Meghalaya Governor V Shanmuganathan, following a nudge from the Centre, resigned after allegations of sexual harassment levelled by Raj Bhavan staff.
  • In 2009, then Andhra Pradesh Governor N D Tiwari also resigned “on health grounds” following an alleged sex scandal in Raj Bhavan.

 

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