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Discretionary powers of the Governor in relation to granting sanction for the prosecution of Public Servants

Written by: Chahat Chawl - 2nd year student of School of Law, Christ University, Bangalore
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For the prosecution of public servants for offences which are fundamentally criminal in nature, a grant of sanction under Section 197 of the Code of Criminal Procedure is necessary. This grant of sanction has been accorded to Judges, Magistrates, and Public servants, so that they can be prevented from frivolous prosecution and in cases where the prosecution of these persons is not in public interest.

Section 197 of Cr.P.C, uses the expression ‘State Government’, the Supreme Court in some cases have considered it to be the Council of Ministers and that even in cases in which the Statutes use the expression ‘Governor’ , by way of process of interpretation the Apex Court has held the expression to be interpreted as the ‘State Government.’

In the case of State of Madhya Pradesh v. Dr Yashwant Trimbak (19) --
The power to sanction is nothing but an executive action of the Government. This is not a matter with respect to which the Governor is required under the Constitution to act in his discretion.

Also, in the case of State of Uttar Pradesh v. Pradhan Sang Kshetra Samiti it was held that even though Article 243(g) of the Constitution uses the word ‘Governor’, it was interpreted to be the State Government.

The provision in Article 163 lays down that in the case if the Governor there shall be a Council of Ministers to aid and advice him. These are the provisions for the discharge of executive powers and functions of the Government in the name of the Governor, with the Governor being a mere Constitutional Head.
The Halsubry’s laws of England (4th Ed. Vol. I 748 at p. 170)

Where functions entrusted to a Minister are performed by an official employed in the Minister's Department there is in law no delegation because constitutionally the act or decision of the official is that of the, Minister. The official is merely the machinery for the discharge of the functions entrusted to a Minister
It is very necessary to mention the relevant Articles in order to determine whether the Governor would have discretion in such matters. Article 154(1) provides that the Executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officer’s sub-ordinate to him in accordance to the Constitution.

Article 163-- Council of Ministers to aid and advice Governor.

“(1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.
(3) …….”
Article 166-- Conduct of business of the Government of a State.
“(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor
(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.”

The Constitution of India envisages a Parliamentary or Cabinet system of Government, adopted from the British model. Under the Cabinet system of Government the Governor is the Constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers.

Wherever the Constitution requires the satisfaction of the Governor for the exercise of any power vested upon him by the mandate of the Constitution, the satisfaction required by the Constitution is not to be construed as the personal satisfaction of the Governor but is the satisfaction of the Governor in the constitutional sense under the Cabinet system of Government. This essentially implies that it is the satisfaction of the Council of Ministers as conveyed to the Governor, on the basis of which the Governor acts. The legal position has been unambiguously expostulated in this regard by the apex Court in P. Joseph John v. State of Travancore-Cochin.
“It is an elementary principle of democratic Government prevailing in England and adopted in our Constitution that the Rajpramukh or the Governor as head of the State is in such matters merely a constitutional head and is bound to accept the advice of his Ministers”

The intention of the founding fathers of the Constitution unerringly points to the binding quality of Council advice upon the exercise of gubernatorial powers. Dr. B.R. Ambedkar observed in the Constituent Assembly that the Governor “is required to follow the advice of his ministry in all matters” therefore the satisfaction of the executive is not his personal satisfaction, but satisfaction “in the constitutional sense under the Cabinet system of Government”.

The position and power of the Governor vis-à-vis the Council of Ministers has always been an area of dispute in determining the extent of the discretion of the Governor. This question has been dealt extensively in the landmark case of Shamsher Singh v. State of Punjab . The Supreme Court has taken the view that the powers of the Governor and the powers of the Crown in are similar as under the British Parliamentary system.

In Shamsher Singh ( 32)
“The power of the sovereign is conditioned by the practical rule that the Crown must find advisers to bear responsibility for his action. Those advisers must have the confidence of the House of Commons. This rule of English constitutional law is incorporated in our Constitution .The Indian Constitution envisages a parliamentary and responsible form of Government at the Centre and in the States and not a Presidential form of Government. The powers of the Governor as the Constitutional head are not different.”

The Supreme Court in the case of U.N. Rao v. Indira Gandhi held that the position of the President and that of the Governor are just titular in nature and that the real power is actually exercised by the Council of Ministers. Also, in Shamsher Singh it was held that whenever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function the satisfaction required by the Constitution is not personal satisfaction of President or the Governor. The satisfaction of President or the Governor in the Constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor exercises all his powers and functions.

Also in the case of Rai Sahib Ramjawaya v. State of Punjab it was held that:
“Our Constitution though federal in structure is modeled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law through the condition precedent to exercise of this responsibility is its retaining the confidence of the Legislative branch of the state .”

The Constitution does not aim at providing a parallel Government within the State by allowing the Governor to go against the advice of the Council of Ministers, therefore neither the President, nor the Governor is to exercise executive functions at their own discretion.

Hence we can conclude that the Government of the country is controlled by a Ministry and Cabinet chosen by the electorate which while remaining responsible to the electorate is responsible directly to the legislature, in other words, the Executive branch of the Government is responsible to the Legislature for the foregoing reasons.

This is as such a “Constitutional convention ” wherein the rules of political practice are regarded as binding by those to whom they apply.

The Court opined that the Tribunal concerned in this case had come to a wrong conclusion that the sanction required under the relevant rule is the sanction of the Governor. In the case of Shamsher Singh v. State of Punjab Justice K. Iyer put forth a very fundamental question regarding the bare basics of the Constitution; he posed the question (at 92) that—
“Does our legal political system approximates to the Westminster style Cabinet Government or contemplate the President and the Governor, unlike the British Crown being real repositories of actually exercising power in its comprehensive Constitutional significance?”

He observed in the judgment that the President and the Governor are replica of Constitutional monarch and a Cabinet answerable to the Parliament substantially embodying the conventions of the British Constitution-not a turn-key project imported from Britain, but an edifice made in India with the knowhow of British Constitutionalism. The Government is carried on by the Ministers according to the rules of allocation of business and the Governor not more than the Queen, merely need know or approve orders issued in his name.

The core of the Westminster System is that the Queen reigns, but the Ministers rule. If the “inner voice ” of the founding fathers may be any guide it is proved beyond reasonable doubt that the President and, a fortiori, the Governor enjoy nothing more and nothing less than the status of constitutional head in a cabinet type Government.

Dr. Ambedkar’s comprehensive statement introducing the draft Constitution on November 4th 1948, regarding the structure of the Indian polity is:--
“Under the Draft Constitution the President occupies the same position as the King under the English Constitution The President of the Indian Union has no power to do so long as his Ministers command a majority in Parliament”.

The expression “required” found in Article 163(1) is stated to signify that the Governor can exercise his discretionary powers only if there is a compelling necessity to do so . The necessity to exercise such powers may arise from the express provision of the Constitution or by necessary implication. The Sakaria commission report further adds that such necessity may arise even from the rule and order made “under” the Constitution. Baring few exceptions, wherever the Constitution requires the satisfaction of the President and the Governor, it is not their personal satisfaction, but the satisfaction of the Council of Ministers on whose aid and advice, the President or the Governor has to exercise their powers and functions. Neither of them can exercise the usual Executive function individually or personally.

In Sanjeevi Naidu v. State of Madras it was held that--
“The Governor is essentially a constitutional head and the Government is run by the Council of Ministers. All the matters in which in which the Governor is specifically required to act in his discretion have to be decided by Council of Ministers .”

In U.N. Rao v. Indira Gandhi Justice Sikri speaking for a unanimous Court, after reiterating‘that we are interpreting a Constitution and not an act of Parliament’,
“A Constitution which establishes a Parliamentary system of Government with a cabinet thought it was proper to keep in mind the conventions at the time the constitution was framed. For a Centrally appointed Constitutional functionary to keep a dossier on his Ministers or to report against them or to take up public stances critical of Government policy settled by the cabinet or to interfere in the administration directly−these are unconstitutional faux pas and run counter to parliamentary system. In all his constitutional functions it is the Ministers who act; only in the narrow area specifically marked out for discretionary exercise by the Constitution, he is untrammelled by the State Ministers acts and advice. of course, a limited free−wheeling is available regarding choice of Chief Minister and dismissal of the Ministry, as in the English practice adapted to Indian conditions ”.

As held by Ray. C. J in Sardari Lal v Union, Article 74(1), provides that there shall be a Council of Ministers to aid and advice the President in the exercise of his functions and Article 163(1) meets the same provisions mutatis, mutandis, for the Governors. “If the correct conclusion to draw from Articles 74(1) and 163(1) is that the President and the Governors are not obliged to accept and act according to that advice, if would follow that in the discharge of their functions, the President and the Governors have a discretion to disregard the advice of the Council of Ministers ”. But such a conclusion is inconsistent with the express conferment of discretionary power of the Governor under Article 163(2), for, if Governors have a discretion in all matters under Article 163(1), it would be unnecessary to confer on Governor an express power to act their own discretion in a few specified matters.

The conferment of specified discretionary powers by Article 163(2) negatives the view that the President and the Governor have a general discretionary power to act against the advice of the Council of Ministers.

It is undeniable that the sanction for prosecution of public servant including a minister is the executive function of the State Government . The Governor is not required to exercise this function in his discretion ‘by or under’ the Constitution. There is not specific Article in the Constitution which requires the Governor to act ‘in his discretion’ in the exercise of the Executive function. It is well settled that unless a particular Article expressly so provides, an obligation of the Governor to act in his discretion cannot be inferred by implication, as held by the Hon’ble Supreme Court in Ram Jawaya v. State of Punjab, and Sanjeevi Naidu v. State of Madras.
The area in which the Governor has to act in this discretion is “ear-marked” , in various Articles and if the question arises whether the Governor should exercise this discretionary power in that area, then his decision in that respect attains finality under Article 163(2). It is not that he can arrogate to himself any executive function of the State and then claim his decision to be final. That approach would be contrary to the legal position as settled by Supreme Court in Shamsher Singh. Therefore Article 163(1) does not enable the Governor to grant sanction for the prosecution in his discretion. Further, Article 163(2) does not attach finality to the decision of the Governor in such matter. It is outside the preview of Article 163(1) as it is not “expressly spelt out” in any provision of the Constitution . It is also not covered by any exception situations as indicated in paragraph 153 in the Shamsher Singh Judgement. It can therefore be concluded that in absence of any source of power emanating from specific provision in the Constitution, or any Constitution conventions, it is not possible for the Courts to concede to the Governor the power to sanction the prosecution of a Minister.

In U.P.P.S.C. v. Suresh Chandra, the Supreme Court following the Shamsher Singh has held that the Governor is bound by the Council of Ministers in matters of all executive importance.

These discretionary powers exist only when they are expressly spelt out, and even these are left to the full discretion of the Governor, but are remote controlled by the Union Ministry which are answerable to the Parliament for those actions . In all the constitutional functions of the Governor it is the ministers who act.
II.A—Difference between Constitutional and Statutory discretion.

Under Article 163(1) of the Constitution the Governor has been given discretion only in relation to his function under the Constitution, he is required to exercise in his discretion. The grant of sanction under 197 of Cr.P.C is statutory function of the State Government and cannot be said to be discretionary function of the Governor under the constitution. This is not a matter in respect to which the Governor is required under the Constitution to act in his discretion and he has to act on the advice of the Council of Ministers.

Therefore, the general rule must prevail and the Governor must act in the sphere as per advice of the Council of Minister and not contrary to it. If this power is conceded to the Governor it would open the flood gates for the exercise of the discretionary power of by the Governor in all cases where the decision of the Council of Ministers is considered inept or inappropriate by the Governor. That would amount conferring the power of review on the Governor in respect of the decisions taken by the Council of Ministers which is answerable to the Legislative Assembly and the people. That would be against the spirit of the Constitution which has established the Cabinet form of the Government in State also. That would bring diarchy as indicated in the case of Shamsher Singh.

The interpretation of a provision of the Constitution would not differ or deflect simply because of the possibility of abuse of power by the Council of Ministers in a given case. The Constitution has reposed greater faith in the Council of Ministers answerable to the people and it is expected that it would consider even the question of grant of sanction for prosecution of its Minister in a detached and dispassionate manner upholding the rule of law and cause of justice . There is a presumption that the decisions of the Council of Ministers have been arrived at rightly and regularly and not to shield the guilty. Hence, the Governor if at all has discretion would be under the Constitution, and not under any Statute.

Therefore the petitioners would like draw the attention of this Hon’ble Court to the difference between the Constitutional discretion and statutory discretion, and here in the instant case the question is in relevance to the discretion of the Governor in relation to Cr.P.C, therefore, the Governor should not have any discretionary power in this matter.

Public Servants Vis-a-Vis Penal Laws:
During the Mauryan Era (313 BC), in the ancient India (200 BC - 1000 AD), the Civil Servants performed the role of Personal Servants; during the medieval period (1000-1600 AD)

Prosecution of Public Servant upon Private Complaint:
The Appellant vide several letters to the Respondent No. 1, Dr. Manmohan Singh, sought to accord sanction to prosecute Respondent No. 2, A. Raja, the ex-Minister for Communication and Information Technology under the Prevention of Corruption Act, 1988.

Prevention of Corruption Act, 1988:
Corruption is considered to be one of the greatest impediments on the way towards progress for developing country like India. The economic, social and cultural structure of our country is very strong;

The author can be reached at: - Ph No: 9164-600-140 / Print This Article


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