Context: Recently a complaint alleging sexual harassment has been filed in Kolkata against West Bengal Governor. Despite this, Constitutional immunity prevents the police from identifying the Governor as a suspect or conducting an investigation into the matter.

Understanding Article 361 of the Constitution

• Constitutional Immunity: Under Article 361, the Constitution establishes a total prohibition on prosecuting the Governor.

• The police can take action 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.

• Article 361 of the Constitution: It states that the President and the Governors 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 by him in the exercise and performance of those powers and duties.

• No criminal proceedings shall be initiated or continued against the President, or the Governor of a State, in any court during the term of his office. 

• No process for the arrest or imprisonment of the President, or the Governor of a State, shall be issued from any court during his term of office.

Judicial Pronouncements Related to Constitutional Immunity

• Rameshwar Prasad v Union of India, 2006:  In this case, the Supreme Court outlined the immunity enjoyed by the Governor even on allegations of personal malafides.

• He is not answerable to any Court for the exercise and performance of his official duties.

• The ruling is not for criminal complaints but for exercising discretionary constitutional powers.

Instance When Criminal Proceedings were Suspended Till a Governor Completed Term in Office

• Demolition of the Babri Masjid Case: In 2017, the Supreme Court allowed fresh charges of criminal conspiracy against UP Chief Minister Kalyan Singh in the 1992 demolition of the Babri Masjid. 

• However, the trial did not take place since he was then the Governor of Rajasthan.

• Ruling by Court: The court held that, being the Governor of Rajasthan, he 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.