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Judgment
K. Sukumaran, J.—This is yet another litigative adventure of the petitioner in the writ jurisdiction of this Court. The order assailed is that of
the Governor of Kerala; and the person attacked is the Chief Minister. The State cabinet took a decision on 28-11-1985, sanctioning the issue of
a licence for the establishment of a distillery for the manufacture of spirits. About two months later on 18-2-1986 the Chief Minister flew from
Cochin to Calicut and back in a helicopter of the Indian Navy. These acts, according to the petitioner, constituted offences punishable u/s 5(1)(d)
of the Prevention of Corruption Act, 1947 (hereinafter referred to as ''the Act''). The Chief Minister of a State cannot, however, be prosecuted for
such offences, without the sanction of the Appointing Authority, which in the present case, is the Governor of Kerala. The petitioner made the
necessary application on 25-2-1986. That was supplemented by other petitions submitted on 17-3-1986 and 12-4-1986. The Governor of
Kerala declined sanction for prosecution by his communication dt. 24-4-1986. The order is a brief one and it reads:
Referring to the above, I am to inform you that the Governor finds no case for granting permission to prosecute the Chief Minister u/s 6 of the
Prevention of Corruption Act, 1947.
Your request has therefore been declined by the Governor.
The above order is in challenge in this writ petition. The abuse of the discretion vested in him, extraneous considerations exercising their influence,
and absence of a speaking order, are some of the reasons highlighted in the writ petition and stressed at the time of arguments. The order of the
Governor Ext. P9 is sought to be quashed, and a writ of mandamus according sanction to the petitioner to prosecute the 2nd respondent u/s 6 of
the Act for the commission of offences u/s 5( 1)(d) of the Act is also sought for.
The principles relating to the grant of sanction, when in an attempted prosecution of such an important functionary like the Chief Minister of a
State is involved, have now been laid down by the decisions of the Supreme Court.
The order of the Governor is amenable to judicial scrutiny. When there is a request to sanction a prosecution of the Chief Minister, the
Governor would, as a matter of propriety, necessarily act in his own discretion and not on the advice of the Council of Ministers. The Governor
has to apply his mind to the facts of the case, the evidence collected, and other incidental facts, before according sanction. Sanction is a solemn
and sacrosanct act and not an idle formality. (See R.S. Nayak Vs. A.R. Antulay, and State of Maharashtra Vs. Ramdas Shrinivas Nayak and
Another, .
The petitioner has founded his case of corruption as coming within Section 5(1)(d) of the Act. That section reads:
Criminal misconduct in discharge of official duty : - (1) A public servant is said to commit the offence of criminal'' misconduct -
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for another person any valuable
thing or pecuniary advantage,...
The contention of the petitioner can now be examined with reference to the two items in relation to which prosecution was intended to be
instituted.
The first one relates to the air travel of the Chief Minister. The petitioner has taken pains to collect, collate and correlate some useful information
in relation to the use of I.A.F. aircrafts and helicopters. A reply made by the Minister of Defence on the floor of the Lok Sabha in answer to a
question of Shri. V. S. Krishna Iyer on 9-4-1986 has been produced as Ext.P1. Shri. Arun Singh, Minister of State in the Ministry of Defence,
answered the question relating to the criteria for giving I.A.F. special planes for use of Central Ministers for official visits as follows:
(c) IAF aircraft/helicopters are provided to Central Ministers for the following purposes:
i) Natural calamities/law and order problems which require the immediate presence of the Minister;
ii) For visiting inaccessible areas where no other mode of conveyance is conveniently available;
iii) Medical requirements; and
iv) In exceptional circumstances of sufficient gravity warranting the use of IAF aircraft/helicopters.
The allegation is that the Chief Minister used ""the helicopter of the Indian Navy for attending a personal function at his daughter-in-law''s house in
the sole company of C. L. Anto who was subsequently bestowed with a licence for distillery"". The use of the helicopter, according to the
petitioner, is not for any of the purposes allowed by the Government of India and hence illegal. It was contended that the Chief Minister was not
entitled to the use of the helicopter as his visit did not satisfy any of the conditions relating to the use of aircraft/helicopters.
Even on the basis of the allegations, as made by the petitioner, it is difficult to hold that the Governor erred in declining sanction for prosecution,
judged by the relevant materials before him. It may be noted that the question, and (naturally) the reply, does not relate to the Ministers or Chief
Ministers in the States. If it is assumed that Chief Ministers of States are also entitled to the use of aircrafts and helicopters on conditions similar to
their use by the Central Ministers, the question may arise whether the Minister could not use the aircraft in exceptional circumstances of sufficient
gravity warranting the use of I.A.F. aircraft/helicopters. Can a private and domestic function which has only personal or sentimental value,
constitute ''exceptional circumstances of sufficient gravity?'' A rational and reasonable answer would be fairly evident. But then, the Governor has
to evaluate all the circumstances attended on the journey and materials relevant thereto. Assuming that the : guidelines for use of the helicopter had
been departed from, that deviation is one made by the Ministry of Defence and not by the 2nd respondent. The allegations therefore do not make
out a case of corrupt or illegal means by the Chief Minister in the securing of the facility of the helicopter travel. Nor is there any specific indication
of the abuse of the position of the Chief Minister as a public servant. If in the above circumstances, the Governor felt that a case for sanction of
prosecution of the 2nd respondent had not been made out, it is difficult to hold that the view so taken is an impossible, or a grossly unreasonable or
perverse one.
The second incident relates to the grant of a distillery. The petitioner''s representations themselves indicate that the decision in that behalf has
been taken by the Cabinet. Cabinet, as noted by a great authority on Constitution, is ''responsible not as individuals, but as a body which stands
and falls together/ Ext. P5 letter sent by counsel on behalf of the petitioner, pointed out that the petitioner was ""surprised to note that licences are
arbitrarily and expeditiously granted to private agencis by the Government..."" An arbitrary grant of a licence, by itself, will not constitute an, offence
punishable u/s 5(1)(d). The facts that grant of a licence was in violation of a direction from the Central Government as contained in the letter dt. 2-
12-1981 or contrary to an earlier cabinet decision taken on 5-4-1984, also, by themselves would not bring it within the vice of Section 5(1)(d).
Even in Ext. P6 the contention is:
Hence sanction accorded to private agencies is prompted by personal interest and nothing else.
(Emphasis supplied)
Personal interest by itself may be insufficient to bring the resultant action within the scope of Section 5(1)(d). The working of Cabinet Government,
throughout the last few centuries would reveal that quite often, personal interest of a Minister who had a zeal and mission, resulted in important and
far-reaching measures, Harold MacMillan, who was sometime Minister for Housing and Local Government, refers to the personal interest and
affection he. had for National Parks, the underlying reason : ""it was midst the wonderful scenery of Jesper Park that I first knew that my affections
were returned."" Such a personal interest cannot be treated as an indication of corrupt motive. In that background, the statement attributed to the
then Minister for Excise that the sanction was on the basis of the personal intervention of the Chief Minister in the matter, does not have much of an
impact in the decision. A totally different situation arises when, a proposal though piloted by one Minister, gets transmitted as a Cabinet decision, a
coalition cabinet at that. Herold Spender, in his book ""The Prime Minister"" (a biographical sketch of Lloya George) says:
...it is the essence of a coalition'' that nobody can get all his own way...it is the first duty of a coalition to coalesce....
It is unnecessary to expatiate on the facts of this case, particularly in view of the fact that the question whether the grant of the licence and the later
revocation thereof were legal and reasonable, is a subject matter of various writ petitions before this Court. It is sufficient to say that the allegations
and materials as furnished by the petitioner, are not sufficient to establish that the view taken by the Governor is totally untenable.
It is useful to remember in this context that while considering the validity or otherwise of the order declining sanction u/s 6 of the Act, the Court
is primarily concerned about the allegations and materials being sufficient to satisfy the rigorous requirements of the corrupt acts as enumerated in
Section 5. The Court is not concerned with the morality of the action. Whether the person against whom sanction is sought for prosecution has
conducted himself ideally, having regard to the statute he enjoys and the position he occupies, is totally foreign to the enquiry to be made by the
Court in that connection.
Bhat J. also felt in similar lines, while dealing with an issue relating to sanction, while considering the maintainability of a private complaint filed
against the Chief Minister and the other Council of Ministers. The learned Judge observed:
Of course, one always hopes that the authority concerned takes a wise and correct decision in matters like this as in other matters. But, where on
account of insufficient data, inexperience misjudgment of the situation or miscalculation of such other reasons, a wrong decision is taken and the
same is shown by subsequent events to be wrong or inadequate, that is more a matter for political judgment by the legislature or the people and not
by the court of law unless it be that the act or omission falls squarely within the definition of any of the offences under the IPC or any other law.
The decision in the present case has been taken by the highest constitutional functionary of the State, the Governor of Kerala. The principles
which should guide him in taking such a decision, and even the manner of obtaining advice, otherwise than through the Council of Minister, are all
now clearly laid down by judicial decisions. It can safely be assumed that the Governor of the State while acting in that special capacity, had
conformed to the requirements of law, had acted responsibly, and had duly and properly applied his mind to the materials before him. The
petitioner has not succeeded in making out a case that the Governor had failed in the discharge of his solemn and sacrosanct duty while dealing
with the issue of sanction for prosecution against the Chief Minister. The petition, in the above circumstances, fails and is accordingly dismissed.