1.4 Rameshwar Prasad & Ors Versus Union of India & Anr
Part IV of the full text of the majority judgment by CJI Y.K. Sabharwal and Justices B.N. Agrawal and Ashok Bhan
POINT NO.3 : If the answer to the aforesaid questions is in affirmative, is it necessary to direct status quo ante as on 7th March, 2005 or 4th March, 2005?
As a consequence of the aforesaid view on point no. 2, we could have made an order of status quo ante as prevailing before dissolution of Assembly. However, having regard to the facts and the circumstances of the case, in terms of order of this Court dated 7th October, 2005, such a relief was declined. Reasons are the larger public interest, keeping in view the ground realities and taking a pragmatic view. As a result of the impugned Proclamation, the Election Commission of India had not only made preparations for the four phase election to be conducted in the State of Bihar but had also issued Notification in regard to first two phases before conclusion of arguments. Further, in regard to these two phases, before 7th October, 2005, even the last date for making nominations and scrutiny thereof was also over.
In respect of 1st phase of election, even the last date for withdrawal of nominations also expired and polling was fixed for 18th October, 2005. The election process had been set in motion and was at an advanced stage. Judicial notice could be taken of the fact that considerable amount must have been spent; enormous preparations made and ground works done in the process of election and that too for election in a State like the one under consideration. Having regard to these subsequent developments coupled with numbers belonging to different political parties, it was thought fit not to put the State in another spell of uncertainty. Having regard to the peculiar facts, despite unconstitutionality of the Proclamation, the relief was moulded by not directing status quo ante and consequently permitting the completion of the ongoing election process with the fond hope that the electorate may again not give fractured verdict and may give a clear majority to one or other political party – the Indian electorate possessing utmost intelligence and having risen to the occasion on various such occasions in the past.
POINT NO.4 : What is the scope of Article 361 granting immunity to the Governor?
By order dated 8th September, 2005, we held that the Constitution of India grants immunity to the Governor as provided in Article 361. Article 361(1), inter alia, provides that the Governor 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 purported to be done by him in the exercise and performance of those powers and duties. We accepted the submissions made on behalf of the respondents that in view of this Article notice could not be issued to the Governor, at the same time, further noticing that the immunity granted does not affect the power of this Court to judicial scrutinise attack made on the Proclamation issued under Article 356(1) of the Constitution of India on the ground of malafides or it being ultra vires and that it would be for the Government to satisfy the Court and adequately meet such ground of challenge. A mala fide act is wholly outside the scope of the power and has no existence in the eyes of the law. We, further held that the expression ‘purported to be done’ in Article 361 does not cover acts which are mala fide or ultra vires and thus, the Government supporting the Proclamation under Article 356(1) shall have to meet the challenge. The immunity granted under Article 361 does not mean that in the absence of Governor, the grounds of mala fide or being ultra vires would not be examined by the Court. This order was made at the stage when we had not examined the question whether the exercise of power by the Governor was mala fide or ultra vires or not. This question was argued later.
In our order dated 8th September, 2005 while giving the brief reasons we stated that detailed reasons will be given later.
Article 361(1) which grants protection to the President and the Governor reads as under :
"361.Protection of President and Governors and Rajpramukhs.--(1) 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 :
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 Slate, 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 Stale, 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 therefor, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims."
A plain reading of the aforesaid Article shows that there is a complete bar to the impleading and issue of notice to the President or the Governor inasmuch as they are not answerable to any Court for the exercise and performance of their powers and duties. Most of the actions are taken on aid and advice of Council of Ministers. The personal immunity from answerability provided in Article 361 does not bar the challenge that may be made to their actions. Under law, such actions including those actions where the challenge may be based on the allegations of malafides are required to be defended by Union of India or the State, as the case may be. Even in cases where the personal malafides are alleged and established, it would not be open to the Governments to urge that the same cannot be satisfactorily answered because of the immunity granted. In such an eventuality, it is for the respondent defending the action to satisfy the Court either on the basis of the material on record or even filing the affidavit of the person against whom such allegation of personal malafides are made. Article 361 does not bar filing of an affidavit if one wants to file on his own. The bar is only against the power of the Court to issue notice or making the President or the Governor answerable. In view of the bar, the Court cannot issue direction to President or Governor for even filing of affidavit to assist the Court. Filing of an affidavit on one’s own volition is one thing than issue of direction by the Court to file an affidavit. The personal immunity under Article 361(1) is complete and, therefore, there is no question of the President or the Governor being made answerable to the Court in respect of even charges of malafides.
In Union Carbide Corporation, etc., etc. v. Union of India, etc. etc. [(1991) 4 SCC 584], dealing with Article 361(2) of the Constitution, Justice Venkatahalliah referred to the famous case of Richard Nixon [(1982) 457 US 731] about theoretical basis for the need for such immunity. It was said
"Article 361(2) of the Constitution confers on the President and the Governors immunity even in respect of their personal acts and enjoins that no criminal proceedings shall be instituted against them during their term of office. As to the theoretical basis for the need for such immunity, the Supreme Court of the United States in a case concerning immunity from civil liability (Richard Nixon v. Ernest Fitzgerald, 457 US 731 : 73 Law Ed 2d 349) said:
".....This Court necessarily also has weighed concerns of public policy, especially as illuminated by our history and the structure of our Government....."
".....In the case of the President the inquiries into history and policy though mandated independently by our case, tend to converge. Because the Presidency did not exist through most of the development of common law, any historical analysis must draw its evidence primarily from our constitutional heritage and structure. Historical inquiry thus merges almost at its inception with the kind of "public policy" analysis appropriately undertaken by a federal court. This inquiry involves policies and principles that may be considered implicit in the nature of the President's office in a system structured to achieve effective Government under, a constitutionally mandated separation" of powers."
".....In view of the special nature of the President's constitutional office and functions, we think it appropriate to recognise absolute Presidential immunity from damages liability for acts within the "outer perimeter" of his official responsibility.
Under the Constitution and laws of the United States the President has discretionary responsibilities in a broad variety of areas, many of them highly sensitive. In many cases it would be difficult to determine which of the President's innumerable "functions" encompassed a particular action....."
A division Bench of the Bombay High Court in the case of Shri Pratapsing Raojirao Rane & others v. The Governor of Goa & others [AIR 1999 Bombay 53] has correctly held that in respect of his official acts, the Governor is not answerable to the Court even in respect of charge of mala fide and that in such an eventuality the Governor cannot be said to be under the duty to deal with the allegations of mala fide. The Constitutional Law of India, 4th Edn. by H.M.Seervai has been rightly relied upon in the said judgment. The observations made by full Bench of the Madras High Court in K.A. Mathialagan & Ors. v. The Governor of Tamil Nadu & Ors. [AIR 1973 Madras 198] that the Governor would be under duty to deal with allegations of mala fide in order to assist the Court has been rightly described in Seervai’s commentary being in direct conflict with the complete personal immunity of the Governor.
The words ‘purported to be done’ are of wide amplitude. In Biman Chandra v. Governor, West Bengal [AIR 1952 Calcutta 799] it was held that Article 361 affords immunity in respect of its exercise and performance of the power and duties of the office and any act done or purported to be done by him in exercise and performance of those powers and duties.
In G.D.Karkare v. T.L.Shevde [AIR 1952 Nagpur 330] construing the expression ‘purporting to be done’ it was held that any act, though not done in pursuance of the Constitution, may nevertheless be accorded this protection if the act professes or purports to be done in pursuance of the Constitution. It was further explained that though the Governor is not amenable to the process of the Court but it cannot be said that the High Court cannot examine his action and grant relief in the absence of authority making the decision.
In State v. Kawas Manekshaw Nanavati [AIR 1960 Bombay 502] full Bench of the High Court held that Article 361 only gives personal protection to the Governor. It is not necessary that the Governor should be a party to the proceeding. Validity of actions can be considered and decided in the absence of the Governor. In The State of West Bengal and Ors. v. Sallendra Nath Bose [AIR 1964 Calcutta 184] it was held that a citizen is not without redress even though he cannot implead the Governor as a party but can be given relief.
The position in law, therefore, is that the Governor enjoys complete immunity. Governor is not 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 immunity granted by Article 361(1) does not, however, take away the power of the Court to examine the validity of the action including on the ground of malafides.
In view of the above, while holding the impugned Proclamation dated 23rd May, 2005 unconstitutional, we have moulded the relief and declined to grant status quo ante and consequentially permitted the completion of ongoing election process.
All petitions are disposed of accordingly.
………………………..CJI
[Y.K. Sabharwal]
………………………….J
[B.N. Agrawal]
………………………….J.
[Ashok Bhan]
New Delhi;
January 24, 2006
