The Dravida Munnetra Kazhagam vs The Governor of Tamil Nadu, The Secretary to Governor and The Government of Tamil Nadu

Srinivasan, J.—This writ petition has been filed by the Dravida Munnetra Kazhagam, represented by its General Secretary, for issue of a

writ of certioriarified mandamus, or any other appropriate writ or direction calling for the records pertaining to Letter No. 14/GS/92, dated

13.11.1992 of the Secretary to Governor, who is the second Respondent herein and to quash the same, and to direct the first and third

Respondents, namely, the Governor of the State of Tamil Nadu and the Government of Tamil Nadu to grant sanction u/s 197 of the Code of

Criminal Procedure, 1973 and Section 19 of the Prevention of Corruption Act, 1988 in respect of the Application dated 16.9.1992 submitted by

the Petitioner herein.

We had a doubt as to the maintainability of the writ petition when the matter came before us on 10.8.1993 and we issued notice to the

Advocate General to appear before us and argue the question of maintainability. Today, the Advocate General appeared before us and argued the

matter. He submitted that the writ petition as framed is not maintainable.

The Petitioner filed an application on 16.9.1992 before the Government of Tamil Nadu requesting the latter to accord sanction for the

prosecution of the Chief Minister and other Ministers mentioned therein u/s 19 of the Prevention of Corruption Act, 1988 and Section 197 of the

Code of Criminal Procedure, 1973. The Governor, through his Secretary sent a communication in letter No. l4/GS/92, dated 13.11.1992

informing the Petitioner that the memorandum of the Petitioner was considered and the Governor found no credible basis for a case to sanction

prosecution or to comply with other requests. Challenging the said letter, the present writ petition has been filed. As pointed out already, the

Governor of Tamil Nadu, is the first Respondent in this writ petition and the prayer is to quash the letter referred to above and also issue direction

to the Governor as well as the Government to grant sanction u/s 197 of the Code of Criminal Procedure and Section 19 of the Prevention of

Corruption Act.

Article 361 of the Constitution of India provides that the President, or the Governor or Rajpramukh of a State, 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. The question is whether the said Article bars the filing of present writ petition. It is the contention of

Learned Counsel for the Petitioner that Article 361 of the Constitution of India would be a bar only if the act of the President or the Governor is

one in the exercise and performance of the powers and duties of his office as prescribed in the Constitution. According to him, if it is a power

which is not prescribed in the Constitution but by some other statute, the bar will not apply. It is submitted that in the present case, the power

which the Petitioner wants the Governor to exercise is one u/s 19 of the Prevention of Corruption Act and Section 197 of the Criminal Procedure

Code. u/s 19 of the Prevention of Corruption Act, no Court shall take cognizance of an offence punishable under Sections. 7,10,11,13 and 15 of

the said Act, alleged to have been committed by a public servant except with a prior sanction of the authority competent to remove the person

concerned from his office. In the present case, the persons who are sought to be removed from office are the Chief Minister and the Ministers.

Hence the competent authority is the Governor. Section 197 of the Code of Criminal Procedure prescribed that no Court shall take cognizance of

an offence alleged to have been committed by a person who is a public servant not removable from his office, save by or with the sanction of the

Government. Again the power has to be exercised only by the Governor. Under both the"" Act, the power is exercised qua Governor and not in

any other capacity. According to the Learned Counsel for the Petitioner, the Governor is not exercising the constitutional power when he functions

under the provisions of the two statutes referred to above. We are unable to accept this contention. There is no authority cited by Learned Counsel

in support of this contention. On the other hand, there are number of rulings which hold that the Governor exercises the powers within the meaning

of Article 361 of the Constitution of. India whether they are conferred by the Constitution or by other statutes.

In so far as Article 361 of the Constitution of India is concerned, the Supreme Court had occasion to consider the same in State of Maharashtra

Vs. Ramdas Shrinivas Nayak and Another, . A complaint was filed in that case against the Chief Minister of Maharashtra charging him with

offences punishable under Sections 161 and 185 of the Penal Code read with Section 5 of the Prevention of Corruption Act. The complaint was

not entertained by the Magistrate as it was not maintainable without sanction u/s 6 of the Prevention of Corruption Act. The complainant preferred

a revision before the High Court under Sections 407 arid 482 of the Code of Criminal Procedure. The High Court dismissed the revision, noticing

that an application had been made to the Governor of the State for grant of requisite sanction and observed that the application should not be

decided by the Law Minister or by any other Ministers but that it deserved to be decided by the Governor in his individual discretion. The

observation of the High Court was made in consequence of an express concession made by the Government Counsel. SLP was filed in the

Supreme Court in which the counsel denied that he had made any concession and that the Supreme Court should peruse the written submissions

made by the counsel before the High Court. While rejecting that contention, the Supreme Court held that the judges'' record of the proceedings

which took place in the Court before him are final and they cannot be challenged in a higher Court. They also considered the question whether the

Governor decides the matter on his own or on the advise of the Council of Ministers. The Court held that in such matters, it is for the Governor to

decide on his own and he must exercise his discretion and consider the matter on merits. The relevant passage in the judgment in the Supreme

Court reads as follows:

In the facts and circumstances of the present case, we have no doubt in our mind that when there is to be a proscution of the Chief Minister, the

Governor would, while determining whether sanction for such prosecution should be granted or not u/s 6 of the Prevention of Corruption Act, as a

matter of propriety, necessarily act in his own discretion and not on the advice of the Council of Ministers.

this Court had occasion to consider a case arising under Article 361 of the Constitution of India in Mathialagan v. Governor of Tamil Nadu

(1973)1 M.LJ. 131 (F.B.) : 86 L.W. 365 (F.B.), the Full Bench dealt with consider the powers of the Governor to prorogue the Assembly.

Referring to Article 361 of the Constitution of India, the Full Bench said that the said Article had afforded absolute immunity to the President or the

Governor and he cannot be made by any Court answerable to it 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. Referring to the judgment of the Senior Judge of the Calcutta High Court in the following passage, ""If

the act is ostensibly done in the exercise of the power given under the Constitution and it is not established that the act is done dishonestly or in bad

faith or in other words, out of any improper motive the immunity attaches to the exercise of the power.

The Full Bench said that a comparison of Clause (l) of Article 361 with Clause (4) thereof made it clear that in respect of official acts, an absolute

bar was created by the said Article.

In G. Vasantha Pai Vs. C.K. Ramaswamy and Another, , a single judge of this Court negatived the contention that the power of the Governor

under Article 188 is also one of the functions to be exercised by the Governor on the ''aid and advice'' of the Counsel of Ministers or at least one

to be done on his own discretion and, therefore, by virtue of Articles 163 and 361 the exercise of the discretion by directing the Petitioner to go

before the person appointed by him under Article 188 could not be questioned in a court of law. The learned judge also considered the executive

powers vested in the Governor under Article 163 of the Constitution of India. A similar view was taken by another judge of this Court in S.

Dharmalingam Vs. His Excellency Governor of the State of Tamil Nadu and Another, . Referring to the powers of the Governor under Article 163

of the Constitution of India, the learned judge said that they could be exercised by him in his sole discretion and with regard to the action pertaining

to his sole discretion, the immunity of the Governor is absolute and beyond even the writ jurisdiction of the High Court.

In Kasturi Radha Krishnan v. President of India AIR 1990 Madr 216, a writ petition was filed for direction to the President of India to dismiss

the Governor of a State on the basis of a newspaper report that the Governor wants to enter active politics and is using official machinery for his

purpose. It was held that the said petition was not maintainable in view of Article 361 of the Constitution of India. Learned Judge said that the

Goveraor holds office during the pleasure of the President under Article 156 of the Constitution and as such it cannot be open to the Petitioner to

make allegations in an affidavit based on mere newspaper reports and come to the Court as if it is a public interest litigation. Similar views have

been expressed by the other High Courts. We have already referred to the ruling of the Calcutta High Court in Biman Chandra Bose Vs. Dr. H.C.

Mukherjee, Governor and Others, which has quoted with approval of the Full Bench in Mathialagan''s case (1973) I M.L.J.131supra : 86 L.W.

365).

In Gnanamani v. Governor of Andhra, AIR 1954 And 9, Chief Justice Subba Rao (as he then was) considered the immunity under Article 361

of the Constitution of India and said that in the case of official acts and absolute immunity from the process of Court is given to a Governor and this

immunity extends not only to his official acts but also to acts purporting to be done by him in exercise of the powers conferred on him so long as he

is not guilty of dishonesty or bad faith. The learned Judge analysed the expression, ""powers and duties of the Governor"" and observed that two

kinds of powers are exercised by the Governor. The following passage in the judgment is relevant :

Let me now analyse the relevant provisions of the Article in the light of the case-law cited. The crucial words are ""powers and duties of the

Governor"". The powers and duties of the Governor are prescribed by other Articles of the Constitution. Under "" Article 154 the executive power

of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with

this Constitution.

Article 161 provides for his judicial power and under that Article, the Governor of a State shall have the power to grant pardons, reprieves,

respites, or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating

to a matter to which the executive power of a State extends.

Article 162 says that the executive power of a State shall extend to the matters with respect to which the ""legislature of the State has power to

make laws. A combined reading of the three Articles, therefore, indicates that the entire executive power of the State vests in the Governor in

respect of all matters in regard to which the Legislature of the State has power to make laws. In regard to the same matters he has also got the

limited judicial power narrated above. These are all the powers conferred on the Governor under the Constitution.

(11). But the Constitution may also enable other bodies or authorities to confer the powers or impose the duties on the Governor subject to the

provisions of the Constitution. Chapter I of Part XI of the Constitution confers powers on the Parliament and the State Legislature, to make laws in

respect of matters enumerated ""in the list given in Seh. VII to the Constitution. The said bodies may, therefore, make laws in respect of all matters

mentioned therein and in so doing, confer certain powers on the Governor. So too, the Governor may issue Ordinances under certain

circumstances wherein powers may be conferred on the Governor.

The Executive Government may also in exercise of the powers conferred on them by statutes make rules, conferring certain powers or imposing

certain duties on the Governor. The Constitution also expressly enables the Governor under Article 309 to make rules regulating the recruitment

and conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the

appropriate Legislature. Further certain Acts passed or rules made by competent bodies before the making of the Constitution of India may, by

reason of the transitory provisions, continue to have constitutional validity and binding force.

Such acts or rules may contain provisions conferring certain powers on the Governor. Therefore there are many ways by which a power may be

conferred on the Governor qua Governor, which will enable him to exercise that power by virtue of his office as Governor. All the powers

exercisable by a Governor by virtue of his office can be exercised only on the advice of the Ministers, except in so far as the Constitution,

expressly or perhaps by necessary implications says that he can exercise those powers in his individual discretion"".

(12). There may be a second category of powers conferred on the Governor qua Governor, but in a different capacity though he occupies that

capacity by virtue of his office as Governor. A statute may confer on a Governor the ''ex officio'' Presidentship of charitable institution. A third

category of acts may be exercised by the Governor in his personal capacity.

He may borrow money or execute promissory note. He may make a speech as President of a meeting or write an article defaming or slandering

others. He may commit breaches of contract entered into with third parties.

The learned judge said that with regard to the first category of acts, there is an absolute immunity while with reference to the second category it is a

limited one. The learned judge went on to hold that the first category is not answerable to any court of law, and no court can compel him to show

cause or defend his action.

In Bankim Chandra Mukherji Vs. State of Bihar, , a Division Bench of the Patna High Court held that the Governor was acting in his official

capacity and Was functioning in the exercise and performane of the powers and duties of his office and it was, therefore, not open to the High

Court to issue a writ under Article 226 of the Constitution of India.

In Bijayananda Patnaik and Others Vs. President of India and Others, , the Orissa High Court had to consider whether the report of the

Governor recommending President''s Rule and President''s proclamation under Article 356 was justiciable. Holding that the Governor was

exercising his powers as such, the report cannot be questioned in a Court of law. The court said that even if there is mala fide, that cannot be gone

into as the Governor cannot be made a party to the proceedings and in his absence the allegations or mala fide cannot be considered by the Court

and on that view, the application was dismissed. In Hardwari Lal Vs. G.D. Tapase and Others, the Full Bench of the Punjab and Haryana High

Court prescribed the test for determining whether the act is done in the exercise and power of the office of the Governor. That was a case in which

the action of the Governor while he was functioning as Vice Chancellor of the University was called in question. Referring to Article 361 of the

Constitution of India, the Full Bench said that the immunity under the Article was not available for the Governor in the exercise and performance of

the duties as Chancellor of the University. Making a distinction between the two kinds of powers, the Full Bench said thus:

The distinction between these two modes of appointment is a real one. Thus the powers and duties that the Chancellor exercises or performs under

the Act are not any powers or duties conferred on the Governor qua Governor or of a capacity which he occupies by virtue of his office as

Governor. They are the powers and duties of a public capacity held by the personage who is also the Governor. The Chancellor''s powers under

the Jabalpur University Act are thus not the powers and duties of the office of the Governor and consequently the protection provided by Article

361(l) cannot be invoked by the Chancellor in respect of the exercise and performance of the powers and duties of his office as Chancellor under

the Jabalpur University Act.

Under the constitution, the Governor is conferred with the executive power by Article 154, Judicial power by Article 161 and Legislative

power by Article 162. That does not mean that Article 361 of the Constitution of India contemplates only the powers which are conferred in the

Constitution for the purpose of affording immunity to the Governor. If the Governor acts as such under any other statutes in his capacity as

Governor that will also be exercised of power within the meaning of Article 361 of the Constitution of India. If on the other hand, the Governor

acts in any other capacity under any other statutes or any other provision that will be a different kind of power and that will not be covered by

Article 361 of the Constitution of India. The power contemplated u/s 19 of the Prevention of Corruption Act as well as Section 197 of the Code

of Criminal Procedure is to be exercised only by the Governor as such and not in any other capacity. Consequently, he will be entitled to the

protection of immunity afforded by the Article.

It is next contended by Learned Counsel for the Petitioner that the immunity will not be available in the case of mala fide, According to him,

mala fide have been alleged in the affidavit filed in support of the petition from paragraph 20 onwards. Allegations have been made as against the

Governor that he has acted mala fide. It is not necessary for us to go into the question whether the allegations would amount to acts of mala fide on

the part of the Governor. But we are of the view-that even in case in mala fide no writ petition can be maintained as against the Governor and no

relief can be sought against him. He will not be subjected to the process of court. Article 361(l) of the Constitution of India is absolute in terms and

does not make a distraction between the bona fide act and mala fide act, and in fact the Article applies even if the Governor purports to have done

something in the performance of the powers and duties of the office.

The Full Bench of this Court is Mathialagan''s case supra (1973) 1 M.L.J. 131 : 86 L.W. 365 (F.B.) has considered the position and taken the

view that even if the Governor acts mala fide he will be entitled to the protection under Article 361 of the Constitution of India. The relevant

passage reads as follows:

Neither the Superme Court in this case, nor the other cases we referred to of the High Courts, was held that the personal immunity afforded by

Article 361(l) to the Governor did not avail where his bona fides were questioned. They have not held that where his bona fides are questioned, he

can personally be called to enter his defence. In our opinion, his personal immunity extends to such a case as well.

Learned Counsel for the Petitioner submits that the observation of the Full Bench is erroneous inasmuch as it has after referring to the rulings of

the Calcutta High Court in Biman Chandra v. H.O. Mukherjee, Governor, West Bengal, AIR 1952 Cal 790, and Andhra High Court in

Gnanamani''s case supra (AIR 1954 And 9) as well as of the Supreme Court in State of Punjab Vs. Satya Pal Dang and Others and Baldev

Parkash and Others, , overlooked the ratio of the rulings that in the case of mala fide the immunity will not be available. We do not accept the

contention. We are in agreement with the view taken by the Full Bench. The Full Bench has not committed any mistake in this regard. As pointed

out already, Article 361 of the Constitution of India is absolute in terms and even in the case of mala fide the protection of immunity will apply.

Morever, in this case the person against whom mala fides are alleged is no longer in office. The successor cannot be called upon to answer the said

allegations.

Learned Counsel, invites our attention to the judgment of aother Full Bench of this Court in K.S. Haja Shareef v. Governor of Tamil Nadu

(AIR 1985 Mad 55). Reliance is placed on the following passage in the judgment:

If a Constitutional functionary, in whom power had been conferred to take a decision which has the seal of finality wrongly interprets the

Constitutional provisions, then, the decision so arrived at will have to be set aside by issue of a writ of certiorari because it would not be a valid

order in the eye of law. Hence, we are of the view, that there can be a judicial review of an order passed under Article 192(1) on this ground also.

It should be noted that the question of maintainability of the writ petition was not raised before the court and the Full Bench had no occasion to

consider the same. The Full Bench has not even referred to Article 361 of the Constitution of India. Hence, no reliance can be placed on the said

ruling. The learned Advocate General points out that the scope of Article l92(2)(l) of the Constitution of India which was the subject matter in that

case is different from the present proceeding and the ruling will have no application.

Learned Counsel for the Petitioner placed reliance on the decision in Union of India (UOI) Vs. Jyoti Prakash Mitter, and invites our attention

to the following passage:

It is necessary to observe that the President in whose name all executive functions of the Union are performed is by Article 217(3) invested with

judicial power of great significance which has bearing on the independence of the Judges of the higher courts. The President is by Article 74 of the

Constitution the Constitutional head who acts on the advice of the Council of Ministers in the exercise of his functions. Having regard to the very

grave consequences resulting from even the initiation of an enquiry relating to the age of a judge, our Constitution makers have thought it necessary

to invest the power in the President. In the exercise of this power if democratic institutions are to take root in our country, even the slightest

suspicion or appearance of misuse of that power should be avoided. Otherwise independence of the judiciary is likely to be gravely imperilled. We

recommend that even in the matter of serving notice and asking for representation from a Judge of the High Court where a question as to his age is

raised, the President''s Secretariat should ordinarily be the channel, that the President should have consultation with the Chief Justice of India as

required by the Constitution and that there must be no interposition of any other body of authority, in the consultation between the President and

the Chief Justice of India. Again we are of the view that normally an opportunity for an oral hearing should be given to the Judge whose age is in

question, and the question should be decided by the President on consideration of such materials as may be placed by the Judge concerned and

the evidence against him after the same is disclosed to him. The President acting under Article 217(3) performs a judicial function of grave

importance under the scheme of our Constitution. He cannot act on the advice of his Ministers. Notwithstanding the declared finality of the order of

the President the court has jurisdiction in appropriate cases to set aside the order, if it appears that it was passed on collectoral considerations or

the rules of natural justice were not observed, or that the President''s judgment was coloured by the advice or representation made by the

executive or it was founded on no evidence. But this Court will not sit in appeal over the judgment of President, nor will the courts determine the

weight which should be attached to the evidence. Appreciation of evidence is entirely left to the President and it is not for the courts to hold that on

the evidence placed before the President on which the conclusion is founded, if they were called upon to decide the case they would have reached

some other conclusion.

But the President was not made a party in that proceeding. In that case, the Union of India was the only Respondent. The Petitioner sought only a

declaration that he was entitled to hold office till a particular date and for the issue of a writ of mandamus restraining the Union of India from giving

effect to the order of the President. Thus the President was not made answerable to the court. There was no prayer for the issue of any writ. In

those circumstances, the decision will not help the Petitioner herein.

In the result, the present petition which impleads the Governor of Tamil Nadu as a party and seeks the issue of a writ as against him besides

quashing of the order is not maintainable. Consequently, the writ petition is dismissed as not maintainable. We have dismissed this writ petition as it

is not maintainable in the way in which it is framed.

This will not prevent the Petitioner from seeking appropriate remedies against appropriate parties.

No costs.