The Supreme Court on Friday issued a notice to the Mamata Banerjee government on a petition filed by a Raj Bhavan employee alleging sexual harassment by the governor and challenging the immunity from criminal prosecution enjoyed by Presidents and governors under Article 361.

A bench headed by Chief Justice of India D.Y. Chandrachud prima facie agreed with the petitioner that the court should examine the issues relating to constitutional immunity. “The petition raises the issue as regards the interpretation of Clause (2) of Article 361 particularly when criminal proceedings would be construed to have been instituted in terms of the governing provisions of the law,” the bench, which included Justice J.B. Pardiwala and Justice Manoj Misra, said.

The petitioner, through senior advocate Shyam Divan, has pleaded that such immunity was unconstitutional because it violates the fundamental rights of other citizens to prosecute such high constitutional functionaries.

Questioning the immunity granted to the President and governors under Article 361, the petition filed through advocate Udayaditya Banerjee said the special provision strikes at the very root of the Victorian belief that the “King can do no wrong” and gives absolute constitutional, criminal and civil immunity to the President and governors.

Banerjee said: “The petitioner... an employee of the Raj Bhavan, West Bengal, is constrained to move this hon’ble court invoking its extraordinary jurisdiction under Article 32, (for enforcement of fundamental right) Constitution of India aggrieved by the sexual advances/harassment made by the constitutional authority the hon’ble governor, state of West Bengal on the premises of Raj Bhavan itself.

“However, due to the blanket immunity bestowed under Article 361, Constitution, the petitioner is left remediless despite the offence against her person, and therefore is constrained to approach this hon’ble apex court directly.”

Article 361(2) states: “No criminal proceedings shall be instituted or continued against the President, or the governor of a state, in any court during his term of office.”

In other words, such proceedings can be initiated only after the incumbent demits office but not when he/she is in power.

“Such powers cannot be understood to be absolute to enable the hon’ble governor to do illegal acts or strike at the root of Part III (fundamental rights) of the Constitution. Moreover, the said immunity cannot impair the police’s powers to investigate the offence or even name the perpetrator in the complaint/FIR, despite specific averments to that effect,” the alleged victim said.

The petition gives a detailed account of the alleged sexual harassment faced by the Raj Bhavan employee on April 24 and May 2 when she was called by governor C.V. Ananda Bose inside his chamber and sexually harassed.

“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,” the petition said.

The petition lamented that the incident, which should “further shock the conscience of the court is that the accused, who under the garb of discharging his official duties, conducts himself in such a deplorable matter, is today given the voice by the media to give statements in the media brushing the allegations under the carpet and by terming them ‘engineered narrative’ while the petitioner herein is rendered voiceless and shunned to a life of depravity and ridicule.”

The petitioner has sought the following directions:

n Direct the state of Bengal through the director-general of police to provide protection and security to the petitioner and her family.

n Direct the Bengal government to compensate the petitioner for the loss of reputation and dignity suffered by her and her family because of the failure of the state machinery to protect the identity of the victim.

n Mandate the state police machinery to carry out investigations, including recording of the governor’s statement in connection with the investigation.

n Frame guidelines on the actual extent of immunity that is available to governors under Article 361.