ORDER
M. S. Liberhan, CJ
1. The leading politicians in public interest, as Legislators and public figures, sought a writ of mandamus to direct the Governor of Andhra Pradesh to grant permission to prosecute the Chief Minister for offences under the Prevention of Corruption Act, 1988, as represented in the representation dated 5-6-1999, and to direct the other respondents to produce records in their custody. The Governor of Andhra Pradesh, Chief Minister by name, Special Secretary to the Assembly, Special Judge and District Collector are the respondents in the writ petition.
2. Petitioners represented on 5-6-1999 to the Governor to accord sanction to prosecute the Chief Minister under Section 19(1)(c) of the Prevention of Corruption Act, 1988, (hereinafter referred to as 'the Act'). He being the competent authority to accord sanction for prosecution, abdicated statutory duty under the Act by not granting sanction till 12-7-1999. He is subject of accountability enforceable in judicial review.
3. The main relief sought in verbatim runs thus:
'It is therefore necessary in the interest of justice that this Hon'bie Court may be pleased to issue an appropriate writ, order or direction, directing the competent authority i.e., His Excellency, the Governor of Andhra Pradesh, the first respondent herein to forthwith grant permission to prosecute the second respondent herein for offences under the Prevention of Corruption Act, as detailed in the representation dated 5-6-1999 made to His Excellency the Governor of Andhra Pradesh or pass such order or orders as are deemed fit and proper in the circumstances of the case,'
4. Other reliefs and directions sought are directions to the respective respondents to produce the documents in their possession.
5. An objection- was raised by the Registry of the Court about the maintainability of writ petition against the Governor of the State in view of the provisions of Article 361 of the Constitution. On the representation of the learned Counsel for the petitioners the writ petition is listed for hearing as to the question of maintainability. The other objections are with respect to maintainability of writ petition against Chief Minister by name, and about making Judicial Officers parties to this writ petition in view of the orders of the Supreme Court circulated.
6. The learned Counsel for the petitioners contended that the Governor acts in three capacities viz., (1) acts on the advice of the Council of Ministers, (2) assesses and appraises the situation as a Constitutional functionary and has to discharge his constitutional functions in his individual discretion and (3) discharge his functions as enjoined by the statute and thus acting as a statutory authority. He is the appointing authority of the Chief Minister who is a public servant. Me is the competent authority to sanction prosecution under Section 19 of the Act, as it authorises the appointing authority to accord sanction for prosecution against public servant. The acts of the statutory authority are subject to judicial review. Alternatively, he is discharging statutory functions. Thus, he is not protected by the immunity under Article 361 of the Constitution, which is totally personal, though his actions are not above judicial review. He wears dual robes, one as a Constitutional authority and second as a statutory authority. Umbrella of protection provided under Article 361 is personal to him and for his actions discharged as Constitutional authority, while his actions as statutory authority are not immune from judicial review.
7. In order to support the contention hat the Governor is to exercise his own discretion in his personal capacity to sanction prosecution, the learned Counsel for the petitioners relied on the observations made in Slate of Maharashtra v. Ramdas Shirinivas Nayak, : 1982CriLJ1581 .
8. Where allegations of mala fide are made against the Governor, he is required to meet them and cannot claim the protection of Article 361 of the Constitution. Reliance was placed on the law laid down in K.A. Malhialagan v. The Governor of Madras, : AIR1973Mad198 .
9. Reliance was placed on Amarnath Ashram Trust Society v. Governor of U.P., : (1998)1SCC591 , wherein acquisition proceedings were quashed as the State cannot be compelled to acquire land compulsorily and wherein Governor was a party to the writ. Further reliance was placed on the precedent reported m N.T. Rama Rao v. H.E. The Governor of A.P., : 1995(3)ALT929 , wherein allegations of mala fide were made against the Governor, he was made a party, and he filed reply and participated in the proceedings.
10. In order to urge that the Chief Minister is a public servant and the Governor is the appointing authority and prosecution sanctioning authority under Section 19 of the Act, reliance was placed on the law laid down in M. Karunanidhi v. Union of India, : 1979CriLJ773 .
11. The learned Counsel for the petitioners, by relying on Karnataka State v. Union of India, : [1978]2SCR1 , emphasised that the Chief Minister is subject to every kind of enquiry, whether criminal offence by any one has been disclosed or not by facts alleged and as well as liable for prosecution. Constitutional provisions cover an enquiry against a Minister in all matters of public importance, whether the charges include alleged violation of criminal law ornot. He has to face enquiry by each impartial commission, as if a person holding the ministerial office has to face, as he exercises powers as the trustee of the public authority.
12. The learned Counsel for the petitioners relied on S.K Saxena v. Governor of U.P., (1987) Sup. SCC 151, wherein the acts of the Governor, acting as a Chancellor, concerning the orders with respect to inter se seniority of lecturers were subjected to judicial review and the Governor was a party to the litigation. For the same principle, reliance was placed on Hindustan Construction Co. Ltd. v. Governor of Orissa, : [1995]2SCR441 . Further reliance was placed on S.C. Barat v. Hart Vinayak, : AIR1962MP73 , Hardwarilal v. G.D. Tapase, , Naga Peoples' Movement for Human Rights v. Union of India, AIR 1990 Gauhati 1, G.D. Karkare v. T.L Shevade, AIR 1952 Nag 330, wherein Governor's appointment as Chancellor was held to be under an Act and, therefore, he acts as a statutory authority.
13. It was argued that the immunity to the Governor is personal and is only from the Municipal Courts. There is no immunity from being a party in proceedings before High Court, or immunity of his actions not being subject to judicial review by the High Court can be claimed. Reference was made to Articles 112, 212, 243 and 262 of the Constitution. It was submitted that Article 361 has to be read down to the above effect.
14. It was submitted that in view of the law laid down in S.R. Bommai v. Union of India, : [1994]2SCR644 , L. Chandra Kumar v. Union of India, : [1997]228ITR725(SC) , The State of Kerala v. The General Manager, Southern Railway, Madras, : [1977]1SCR419 , Audi Mukta S.M.V.S.S.J.M.S. Trust v. V.R. Rudani, : (1989)IILLJ324SC , Veerappa v. Raman and Roman Ltd., : [1952]1SCR583 and Venkateswara Rao v.Government of A.P., : [1966]2SCR172 , the actions of the Governor are subject to judicial review. The Constitution has to be interpreted so as to give credence to judicial review, which is the basic structure of the Constitution.
15. The sole question for consideration is whether the writ petition is maintainable against the Governor.
16. The scheme of the Constitution provides for vesting of the executive power in the President and, the Governor with respect to State, with an exception of the functions conferred by law on the Government of any State or authority. The term of their office is five years. Parliament cannot be restrained from conferring, by law, the executive functions on the authorities other than the Governor and the President.
17. The Governor is required to appoint the elected leader of the Legislators of the State as the Chief Minister and other Ministers on his recommendation. The Ministers are collectively responsible to the Legislative House. Under the scheme of the Constitution, Governor shall hold office during the pleasure of the President and act on the advice and aid of the Council of Ministers, except where he is ordained to exercise discretion in discharge of his functions or functions required by the Constitution. The President has been authorised to make provisions as he thinks fit for the discharge of the functions of the Governor of the State in the contingencies not provided for. The question whether he is under an obligation to exercise the discretion or act on the advice of the Council of Ministers is to be decided by him. The validity of his act is not subject to challenge on the ground that he should not have acted in his discretion. The question whether any advice was tendered by the Ministers, the liability of the Member of the Legislative House for any proceeding in Court in respectof anything said or vote given by him or any committee thereof was kept out of the purview of the Court's inquiry nor they are liable to be prosecuted in Court. The Courts' jurisdiction is restricted to the extent of their immunity provided by the Constitution. Similarly, neither the Courts can inquire into any irregularity of procedure in the proceedings of the Parliament nor the person responsible to regulate the procedure in conduct of the persons in the Legislative Houses would be subject to the jurisdiction of any Court in respect of exercise by him of those powers. Various exceptions with respect to Courts' jurisdiction for judicial review in specific situation or on specific grounds are imbibed in the Constitution.
18. The Constitution demarcated the powers, functions, privileges and protections of the Constitutional Office holders in Legislative, Executive and Judicial wings. In respect of the privileges, protection and powers which are intertwined and overlapping in functions on account of the complexity of the written Constitution, specific bar has been provided by the Constitution from interference by the Courts. Reference of specific instance may be made to electoral matters i.e., Article 329 and power of the President to deal with the situation where constitutional machinery in the State has failed to discharge its constitutional duties.
19. It would be expedient to notice the protection granted to the President and the Governor by Article 361 of the Constitution which runs in verbatim thus:
'Protection of President and Governors and Raj Pramukhs :--(1) The President or the Governor or Raj Pramukh 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 :
Provided that the conduct of the President may be brought under review by any Court, Tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under Article 61;
Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State.
(2) No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any Court during his term of office.
(3) 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.
(4) No civil proceedings in which relief is claimed against the President, or the Governor of a State, shall be instituted during his term of office in any Court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President, or as Governor of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor, as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefore, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims.'
20. Article 226 confers the jurisdiction and the power on the High Court to issue to any person or authority, Government, ordersor writs for enforcement of any right conferred by Part III or for any other purpose.
21. From a reading of Article 361 it emerges that a Governor shall not be answerable to any Court for exercise of powers and duties of his office or for any act done or purporting to be done in exercise and performance of those powers and duties. No criminal proceeding can be instituted or continued in any Court during his term of office. No process for his arrest or imprisonment can be issued by any Court during his term of office. No civil proceeding seeking any relief against him with respect to any act done by him in his personal capacity, shall be instituted irrespective of the fact whether it was done before or after he assumed office, unless prior notice of two months is served on him in accordance with the procedure prescribed.
22. While giving life to the vibrant Constitution and interpreting the same, full meaning has to be given to the powers conferred by the Constitution and necessity for inserting it in the written Constitution requires a separate treatment. Though, legalism and rigidity arc inevitable in interpretation of the Constitution, yet, it is to be minimised. It is axiomatic that various pronouncements of the Supreme Court held that liberal construction is required to be placed on the constitutional provisions, yet, it cannot be free to stretch or pervert the language in the interest of any legal or constitutional theory or supply omissions or correcting areas. It is not for the Courts to enlarge the powers constructively by enlarging those conditions or restrictions placed on the exercise of such powers. The intention of the law maker expressed in the law itself taken as a whole is to be kept in view. The phrases are not to be looked as the catch of a particular phrase in a statute. It has been specifically recognised that constitutional powers are defined, though they are closely intertwined. Special powerwould prevail on general powers. Express powers and the privileges have been conferred by the Constitution and there is no reason either to restrict or to broaden the same through interpretation. It is the constitutional provision that matters and not its effects. In a written Constitution rights, restrictions, privileges and powers are specifically mentioned. No limitation on constitutional rights can be permitted. It is neither a cope nor be a constitutional mandate by Courts, because the particular situation or fact demands, even according to the conscience, the thoughts of the Courts, or the party tells to do so, other than the mandate ordained by the Constitution. Especially, conferment of the privilege or denial of the same cannot be termed as violative of the equality enshrined in the Constitution. One is expected to interpret what is in the context and not something else. One has to accept the words of the written Constitution. The Courts have no power of any kind beyond the Constitution and it cannot assume discretionary powers, which the Constitution has denied. The Courts cannot act on the vague ground that the State is opposed to the patent or latent spirit underlying the Constitution, where neither the terms nor the implications disclose any such restriction. Permitting the other way would be permitting the Government into judicial despotism as has been stated by Marshall, CJ.
23. The Constitution is binding on all the branches under the Constitution. It isonly expected that the Court should act legally rather than as a political institution as it thinks fit by manipulating the principles to make things come out the way it wishes on the grounds that are not contained in the principles it proposes to apply. It is well established that in the absence of a law, a Judge is a functionary without functions. He has no law to apply. A Judge has a never ending task of discerning the meaning of provisions from one case to next. No doubt the Judge is required to adjust themeaning of the words of the Constitution in the changed circumstances rendering the constitutional guarantee meaningful.
24. It has been observed by jurists and the authors of the Constitution that the Constitution has aims and object of veneration, a sacred text, a symbol of nationhood, the formation of Government structure and practice, guarantor of liberties and moral teacher. It has also the power. In our hands, words become actions, commands are issued by Courts and obeyed by Legislatures and enforced by Executive. The reading of words become freedoms and restrictions. The course of the nation is confirmed or altered the way we live and the way we think and feel and effect.
25. We are incredibly complex and intricate society and no power is without check, some obvious and direct in operation, some subtle and intangible. But major check on judicial powers, perhaps the major check in the Judges and our understanding of proper limits is the judicial restraint.
26. In view of the observations made in Samsher Singh v. Stale of Punjab, : (1974)IILLJ465SC , the position of the Governor corresponds to that of a Sovereign in United Kingdom who is a formal head of the Government. The protection is guaranteed to the office holder of the Governor and not being answerable to Court in his persona! capacity, be it criminal or otherwise, for any act done or discharge of duties of Office or purporting to be done towards the same. He is protected even from the criminal proceeding, even for personal acts done at any point of time, during his term of office. The object of protection is clearly decipherable of keeping the office of the Governor at a high pedestal. The protection cannot be termed to the person, but is to the office holders. The protection is categorically to his person whorecognises his dual personality of one being discharging the functions in his personal capacity and the other by virtue of holding the office.
27. Power of judicial review is the basic structure of the Constitution. The acts of the Governor vioiative of any fundamental right or any constitutional right cannot be denied to be subject to judicial review, though the Governor has been protected from being answerable to any Court. The Governor is not answerable to any Court though his acts or the decision made may be declared to be ultra vires or vioiative of Constitution.
28. The rights and jurisdiction of the Constitutional wings are not unbridled but carries with them the restriction and limitations provided by the Constitution and if we may hasten to add, are subject to the constitutional restrictions and privileges conferred on various authorities. Full meaning has to be given to the protection provided by the Constitution.
29. It would be reasonable to infer that the framers of the Constitution in order, to accommodate the plurality of the fundamental and complex values, smooth functioning of the polity of the system, checks and balances with separation of powers, still intertwined with each other among the three co-ordinate branches i.e., Legislature, Executive and Judiciary, have spelt out specifically the jurisdiction, privileges and protective umbrellas to the office holders or members of each institution. Constitutional functionaries are expected to take care of the constitutional duties subject to the provision provided in the hierarchy of each wing and in specific case extending the supervision by other co-ordinate branch, as has been specifically provided in the Constitution. The object of providing exclusion is too obvious to assume that framers intended to maintain the dignity and harmonious functioning of the institutionsreflecting that some issues in their very nature are unsuitable to be determined or principle involving inputs beyond the capacity and comprehension or manageability of other branches or protecting the negative impact or consequences involved. There can be no gain saying that functions facing and emerging of contentious issues calling for solution and determination necessitated complex and delicate balancing of political, economic, ethical factors, diplomatic inputs, considerations of nation's security - internal and external, international relations and the like, which inherently cannot conform to the said parameters or to such solutions. The constitutional framers weighed innumerable considerations in our constitutional scheme. Judicial review or answerability of a particular holder of the office in discharge of his function by a specified authority in specified spheres has been specifically excluded from the purview of other authorities i.e., being answerable to Courts. There is no ambiguity in Article 361. It is clear and explicit, it admits of no doubt. It engrafts no exceptions on the immunity conferred on the Governor enumerated in the Article. The immunities are neither expressed nor implied from the text and context of the Constitution nor the same can be engrafted in it. It is a personal immunity or a privilege conferred on the constitutional office holder. His accountability as well as the manner of implementation of the accountability has been provided in the hierarchy i.e., it confers jurisdiction on the President under whose pleasure he holds the office. On the Governor's failure to discharge his constitutional obligations while holding the office at the pleasure of the President, appropriate action can be taken by the President.
30. The appointment of the Chief Minister needs to be examined in the context of the democracy being the very foundation of the Constitution where people are the sovereign, members of the Legislative House are their representatives, who inthe process elect their leader designated as Chief Minister by the Constitution, whom the Governor is bound to appoint with no discretion. Could it be termed as even appointment, as known in the common parlance and can be raised to the pedestal of appointment of an officer or a person known in the service parlance/jurisprudence as an appointment in the executive wing. We may hasten to add that without expressing any opinion on the said question, as the Hon'ble Supreme Court has observed and laid down the binding law that for the purpose of Section 19 of the Act the Governor is the appointing authority of the Chief Minister and is the authority to grant permission for prosecution, we need not dilate on this aspect.
31. It is well established, as referred in the earlier part of the judgment, by the law laid down by the Supreme Court that the application for sanction under the Act made to the Governor would not be dealt with by the Minister or the Cabinet, but would be decided by the Governor in his individual discretion. The Supreme Court further held that there is no doubt in their mind when there is to be a prosecution of the Chief Minister, whether the Governor would sanction such prosecution or not under the Act, as a matter of propriety necessarily act in his own discretion and not on the advice of the Council of Ministers, which is the correct proposition. The Governor is required to be satisfied, be by holding enquiry or other innumerable material considerations even after a prima facie case may have been made out, that on larger perspective no sanction be given. For example, disturbing communal peace in society, generating instability, etc.
32. The question under consideration is not res Integra. In The Dravida Munnetra Kazhagam v. The Governor of Tamil Nadu and others, (1994) 1 LW 145, the Division Bench of the Madras High Courtwherein the question on hand i.e., whether Article 361 bars the filing of writ petition for issuance of mandamus or certiorari, calling for the records and quashing an order of the Governor intimating through the Secretary that the Governor found no credible bases for a case to sanction prosecution under Section 19 of the Prevention of Corruption Act against the Chief Minister, and bars any directions to Governor to sanction prosecution and the question of maintainability of writ petition against the Governor were considered. It was observed as under:
'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 exercise of power within the meaning of Article 361 of the Constitution of India. The power contemplated under Section 19 of the Prevention of Corruption Act as well as Section 197 of Criminal Procedure Code 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 the immunity afforded by the Article.'
t was further observed:
'We are of the view that even in case in mala fide no writ petition can be maintained against the Governor and no relief can be sought against him. He will not be subjected to the process of Court. Article 361(1) of the Constitution of India is absolute in terms and does not make a distinction between the bona fide act and mala fide act, and in fact theArticle applies even if the Governor purports to have done something in the performance of the powers and duties of the office.'
33. The Court came to the conclusion as referred to above after taking into consideration the Full Bench decision of the Madras High Court in K.A. Mathialagan's case (supra), also which is very emphatically relied on by the Counsel for the petitioner.
34. The Full Bench decision in Mathialagan 's case (supra), which is the anchor-sheet of the entire premises of the argument of the learned Counsel for the petitioner are based, has no parallel to the question in hand. It was a case in which powers of the Governor for proroguing the Assembly in exercise of powers under Article 174(2) of the Constitution of India on the advice of the Chief Minister were challenged and the writ of certiorari was sought for quashing the said notification, inter alia, on the ground that proroguing the Assembly is against the letter as well as spirit of the law of the Constitution, there is no remedy against proroguing of the Assembly and the exercise of powers of the Governor is vitiated by lack of good faith. The question for determination in the said writ petition was whether the Governor is required to exercise powers under Article 174 without restriction in his discretion and not to act on the advice of the Council of Ministers or the Chief Minister. The Full Bench without determining his constitutional right under Article 361 held that the Governor can exercise the power if he is satisfied to the exclusion of ministerial advice or responsibility. Thus, his act of proroguing the Assembly mainly on the advice of the Minister cannot be rendered as invalid and after noticing the speeches of Dr. Ambedkar and Mr. Alladi Krishna Swami Iyer that the position of the President is that of the King under the English Constitution. He is the head of the State but not of theExecutive. He represents the nation, but does not rule the nation. He is a symbol of the Nation and his place is of ceremonial dvice on a seal by which his decisions are made known. The position of the President is analogous to the Constitutional monarch of the England. Pari materia is the position of the Governor qua the State. It has been categorically observed:
'But since the Governor has claimed absolute immunity under Article 361 of the Constitution, it is contended that he has no immunity under the Article where his bona fides in proroguing the Legislature are in question. In our opinion, Article 361(1) affords the President or the Governors, absolute immunity. 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 in the exercise and performance of his powers and duties. The immunity is personal to him. He cannot be made a party defendant or respondent in respect of his official act done or purported to be done which pertains to the exercise and performance of his powers and duties by his office. The policy behind the immunity is that just like the sovereign in England, the President or the Crown, is head of a State. That seems to be the view of the basis for protection in the King v. The Governor of the Slate of South Australia.'
35. Thus, the observations made in the Full Bench decision run contrary to the contention raised by the Counsel for the petitioner, rather support the view taken by us that the Governor cannot be made answerable to any Court for his acts done in discharge of his constitutional duties in view of specific provisions of Article 361 of the Constitution. Similar is the view taken by the other judgments relied upon by the learned Counsel for the petitioner.
36. In other precedents relied on by the learned Counsel for the petitioner, it is the act of the Governor which was under challenge, if at all, and there was no relief sought against the Governor in person. It was the validity of his act which was under challenge, which is not the case in hand. No act of the Governor is under challenge. No order has been passed by the Governor which can be impugned. If we may say so, the relief sought is the direction to the Governor to decide and act in a particular way, which cannot be comprehended by us in view of the specific bar provided by the Constitution under Article 361.
37. This view was reiterated in Dr. Subramanian Swami v. Deciding Authority and others, 1995 Cri.LJ 3380, wherein it was held that the refusal to sanction prosecution in exercise of discretion of Governor cannot be challenged in the writ petition by impleading the Governor as a party respondent in the name of deciding authority.
38. We find no reason for taking any different view than the one taken by the Division Bench of the Madras High Court referred to above for the reasons recorded therein. We are of the considered view, for the reasons recorded by us during the course of our judgment that in view of the provisions of Article 361 of the Constitution, the Governor cannot be made answerable to the Court in exercise of discharge of his constitutional functions, the podium which the Governor carries to perform by virtue of his constitutional office. The immunity is inherent in an analogous context of the constitutional provisions as referred to in the judgment.
39. Judiciary enjoys neither the legislative nor executive power. Its duty is to preserve Constitution, its mandates and make the people wielding power to act within limits provided by the Constitution and make them directly accountable for their acts tothe authorities provided under the hierarchy of Constitution. It is said constitution is just to be common sense of the people and was never designed for trial of logical skills or visionary speculation.
40. Once the limits are imposed by law or Legislature, consequences are inevitable. The acts can only be done in accordance with the enactment. Judges' morality or morality of one section may be pernicious. Courts cannot impose their views for the governance of the people who have a right to be governed by law or elective representatives but not by an unelected representatives and unaccountable committee of lawyers applying no will but their own. More and more interference in the executive does not represent the smooth working of the constitutional machinery. Rather, it reflects deep seated malice and causes possible distress in each other's institution and a state of approach in decadence. It is a famous saying that Judge may act only where authorised to do. He comes to apply the law. Where law stops, the Legislature may move on to create more but where law stops the Judge must stop.
Judicial supremacy
41. The power of Courts to invalidate statute and executive action in the name of Constitution would have been abandoned, for, the choice would then be either rule of Judges according to their own desire or rule of people according to theirs. The distinction between the authoritarian and judicial oligarchy and the representative democracy can only be that Judges are not the dictatorial oligarchy but the guardians of liberties. Constitution is not a law, is advanced by people who have dramatic expansion of judicial governance in the name of Constitution. It must rise above all. Frankfurter observed, 'the ultimate test of the constitutionality is the Constitution itself and not what we havesaid about it.' Law is what the public thought of, what the Constitution meant and not the subjective intentions. It is how the words would have been understood at the time.
42. While exercising the power of judicial review, Courts would not advance judicial process in the matter of political opinion, question of social and ethical controversy, allocation of resources, lack of objective criteria as the Courts are ill-equipped to do so. Reference may be made to 1999 ACJ 521 at 597-7, 1986 (1) AC 112 at 193, 1995 Vol.11, All England Reports 129. While exercising the power of judicial review one cannot be permitted to rewrite the Constitution once sufficient bar has been provided by the Constitution itself that the Governor shall not be answerable to any Court for his acts done or supposed to have been done in the discharge of his Constitutional functions by any stretch of interpretative law by importing implications and giving credence to the other section of the Constitution, giving a precedent meaning, as the basic structure of the Constitution cannot render the specific unambiguous Constitutional provisions solely on the thought what the constitutional provisions should be. If one person can demand his Constitutional rights the other person cannot be denied the rights specifically conferred on him. The dignity of the highest Constitutional executive post cannot be denuded of its dignity on assumptions that he would not discharge his constitutional duties in accordance with the Constitution.
43. Our Constitution is a written Constitution intertwined with separation of powers yet the same are defined by the Constitution itself. Power of judicial review unexceptionally by now has been accepted as the basic structure of the Constitution while the Constitution itself puts a restriction on each wing or pillar of the Constitution.
44. The scheme of Constitution which provides for justice be it social or otherwise which is again a basic structure of Constitution in its operation, vested the executive power of Union of India in the President of India, and in the case of a State in the Governor of the State who holds the office during the pleasure of the President of India. Constitution has conferred certain privilege on the institution like that of Governor, Parliament, Members of Parliament, etc. It has put an embargo on the powers of judiciary too as in the case of two other equally important participating independent wings of the State i.e., Parliament and State Legislature either expressly or impliedly. It provides that no member of the Legislature would be liable for anything done in any proceeding, in the Court meaning thereby his act is taken out of the purview of judicial scrutiny. Similarly, Court's jurisdiction has been ousted from inquiring into the proceedings in Parliament. Protective umbrella for independent working of the officer was provided by Constitution that no officer shall be subject to Court's jurisdiction with respect to powers exercised by him. Logistic provisions were made in the Constitution with respect to executive and Legislative wings.
45. The Constitution provides that executive powers would vest in the Governor who would hold the same during the pleasure of the President who can further authorise him to discharge the functions not provided by the Constitution. Governor appoints the Chief Minister and the Ministers at his advice. Council of Ministers are required to advise the chief executive i.e., the Governor and the Governor is required to act on their advice. They are provided to be responsible to the Legislative Assembly. The scheme and powers conferred, both procedural and substantial, are in conformity with checks and balances and avoiding complete power on the principle that the absolute power conferred corrupts absolutely. In order thatthe Legislative and executive wings exercise the power independently without fear and favour, complete immunity from Court's scrutiny was provided not only to the Legislative proceedings but also to the officers and Legislators from being subject to Court's jurisdiction with respect to specified subjects and acts of theirs. Inspite of the blanket general powers conferred on the Courts to issue writs, orders, direction for any purposes, the specific acts, subjects, constitutional office holders and persons covered by constitutional provisions are taken out of the judicial purview or being subject to judicial review.
46. There is no dispute with regard to the question of law laid down in Ramdas Shrinivas Nayak's case (supra) and K.A. Mathialagan's case (supra), to the effect that Chief Minister is a public servant. He is appointed by the Governor who would be the appointing authority and the sanctioning authority under Section 19 of the Prevention of Corruption Act, for prosecution. There is again no dispute with the proposition of law laid down in M. Karunanidhi 's case (supra) and Karnataka State's case (supra), to the effect that the Ministers cannot be placed out of the scope of legal answerability on the ground that they were only politically responsible to and controllable by appropriate Legislatures even when they in the course of exercise of official powers act dishonestly and corruptly and even committed criminal offences. But these observations were made in view of the facts and contextual circumstances of the cases wherein appointment of a Commission of Inquiry was under challenge with respect to the conduct of a Minister. At no point of the discussion the question whether the writ petition is maintainable against the Governor or the President was under consideration nor the Supreme Court has addressed itself to the question. The observations made in the context of the case cannot constitute the law laid down. The reasoning adopted to come to a particular conclusion on particular factsand circumstances cannot be logically engrafted in deciding the law in the context of other facts and circumstances where an entirely different question is under consideration. Introduction of logical deduction from the reasoning in the context of one case cannot reasonably be adopted in the facts and circumstances of another case as it would lead to absurd results. It is said that logically when one says all dogs are mammals and all cats are mammals, it cannot be said that all cats are dogs. Analogy applies to observations made in the text of a case in a precedent which cannot be adopted as such in its letter and spirit while determining a different question in facts of case or interpreting different provisions of Constitution. Thus, the taw laid down in M. Karunanidhi's case (supra) and Karnataka State's case (supra), is neither relevant nor throws any light to determine the question in hand.
47. The learned Counsel for the petitioner placed reliance on Amarnath Ashram's case (supra), N.T. Rama Rao's case (supra), Hindustan Construction Company's case (supra), S.C. Barat's case (supra), Hardwari Lal's case (supra), Naga Peoples's case (supra) and G.D. Karkare's case (supra), wherein the Governor was a party to the writ proceedings. We find no force in the argument of the learned Counsel for the petitioner that since the Governor was a party to the writ proceedings in the above precedents, consequently, it should be assumed that a writ petition is maintainable against the Governor. Merely a Governor being a party to the writ proceedings or even having participated in the writ proceedings by itself neither denude him of his right conferred by Article 361 of the Constitution on him nor debars the determination of the question whether the writ petition against the Governor is maintainable for discharge of his constitutional duties which was neither raised nor determined in the said precedents. Apart from the fact that in the said cases either theact of the Governor acting as Chancellor, having been appointed as such under the Universities Act. was subject to judicial review and could be in those circumstances be a party to the litigation was under consideration or where the land acquisition proceedings were challenged since the notification was issued in the name of the Governor and the Governor was pro forma party and no relief was sought against the Governor was the question under consideration. Mere participation of a Governor in a proceedings where allegations of mala fide have been made was though observed to be desirable yet even that question has not been determined as observed in K.A. Mathialagam's case, : AIR1973Mad198 (supra) The said judgment was considered by a Division Bench of the Madras High Court and it was held that no writ petition on the pari matreria facts of the case in hand is maintainable against the Governor with the reasoning of which we have respectfully concurred and referred in our earlier part of judgment.
48. With regard to the reliance placed by the learned Counsel for the petitioner that Governor's actions are subject to judicial review, we fail to comprehend how it can be held that a writ petition would be maintainable against the Governor specially in view of the specific provisions of Article 361 of the Constitution whatever the credence to judicial review one may give as it being the basic structure of the Constitution. The sole question in I consideration in this case is whether a writ petition is maintainable against the Governor or not. It is not the actions of the Governor which have been made subject-matter of judicial review. He has taken no action yet. Relief sought is a mandamus to the Governor directing him to do a particular act, thus, forestalling his decision and exercise of his discretion which has categorically not been envisaged by Article 361 of the Constitution.
49. The learned Counsel for the petitioner has vehemently argued that provisions of Article 361 be read down in order to hold that the protection available to the Governor is only limited to the municipal Courts. We fail to comprehend the distinction attempted to be made between the municipal Courts and the High Courts. The word 'Court' in the Constitution has to be interpreted in the broad sense. No restrictions by implication can be put on the word 'Court' used in Article 361. There are no grounds for reading down Article 361 or importing limitation by interpretative law and restricting the broad umbrella given to high constitutional executive functionary, which was thought of quite essential for the appropriate functioning of the polity of the society free from fear, etc. Thus, we find no force in the submission of the learned Counsel for the petitioner that Article 361 needs to be read down and the immunity provided to the Governor has to be limited to the Municipal Courts alone. There are no bases that the expression 'Court' in Article 361 does not encompass this Court exercising powers of judicial review. The contention is misconceived. There is no warrant to come to such a conclusion on the constitutional text and context or any accepted principle of constitutional interpretation for such a view. Categorical plain reading of constitutional provisions and scheme does ordain such a conclusion.
50. We find no force in the contention of the learned Counsel for the petitioners that while exercising powers under Section 19(1)(c) of the Prevention of Corruption Act, the Governor functions as a statutory authority; consequently, he is subject to the jurisdiction of the Courts. Firstly, the Governor is the competent authority because of his constitutional status as the Governor of the State and as the appointing authority of the Chief Minister who holds office during his pleasure in the Cabinet system of Government paradigm or under the constitutional scheme. Thedistinction between the Governor exercising the powers qua the functions and duties ordained by a statute and one in exercising the constitutional status is obvious. A Legislation like Universities Act may confer a function on the Governor which is de hors the constitutional scheme. For instance, as the Chancellor of the University, which is not the case in hand. The object of conferring the said power on the high dignitary is to check the executive interference, which is not the case in case of appointment of a Chief Minister elected in a democratic system provided by the Constitution and the appointment to be made by the Governor in discharge of his constitutional duty. In such an event, Governor exercises the constitutional power. The nomenclature of the Governor being conferred with the powers of a Chancellor, etc., would be in the descriptive sense to identify a person on whom the powers are so conferred, while herein, the Act does not stipulate the Governor as the competent authority qua the Chief Minister. The learned Counsel for the petitioner has attempted by process of inference from constitutional scheme to contend that precedent law laid down by the Supreme Court is that Governor is the competent authority in view of the constitutional relationship between him and the Chief Minister. Thus, it would be reasonable for us to infer that Governor is the competent authority since he is a Governor in the constitutional sense and not other way as submitted by the learned Counsel that he is discharging statutory functions under the Act and deemed to hold office under it. Thus, the contention of the learned Counsel for the petitioners cannot be sustained and liable to be rejected especially when it runs contrary to constitutional scheme, functioning of the Governor in democratic polity and the basic creed of Constitution.
51. Privilege does not mean that dignitary i.e., the Governor is above law. But it relates to unique role and dutiesrequired to be performed which is quite essential in discharge of his official duties. Therefore, protection or privilege is consistent with the public interest.
52. Lastly, before parting with the judgment to be fair to the learned Counsel for the petitioner, he has relied on the various paragraphs in S.R. Bommai's case (supra). Apart from the fact that the question in hand was not the question under consideration in that case it is not feasible to hold that a Governor inspite of the umbrella of Article 361 can be subject to Court's jurisdiction or can be made answerable to the Court. If we may hasten to add, the various paragraphs referred to by the learned Counsel for the petitioner are totally out of context with the proposition of law we are required to deal with. We cannot apply an abstract sentence or an observation made in the facts and context of that case as a binomial theorem to an entirely different proposition and questions for determination. The law cannot be deduced by taking up one reason in one judgment and the other in the another. Otherwise, the resulting effect would be absurd and may lead to illogical conclusions.
53. Thus, in view of the observations made above, we are of the considered view that no writ petition is maintainable against the Governor of Andhra Pradesh in the facts and circumstances and the relief sought in the case in hand.
54. There can be no serious objection of maintainability of the writ petition against respondent No.2 i.e., the Chief Minister by name. Thus, the objection of the office in abstract that the Chief Minister cannot be a party in person cannot be sustained.
55. With respect to question of impleading of other respondents to produce the records, the Counsel for the petitioner has not seriously pressed it. Consequently, no opinion need be expressed.
56. Before parting with the judgment, we may state that the learned Counsel for the petitioner made an application for impleading the State of Andhra Pradesh as a party, though no relief has been sought against the State, nor can any be granted. As the mandamus is being sought against the Governor to sanction the prosecution, the State cannot sanction prosecution, nor the Governor will fall within the definition of a 'State'.
57. Thus, in view of the observations made above, the writ petition against the Governor is not maintainable and the same is dismissed as such. No order as to costs.