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M. Gnanamani v. His Excellency, The Governor Of Andhra
Structured Summary of the Opinion
Factual and Procedural Background
The petitioner, a B.E. of Madras University employed as an Assistant Engineer in the II Circle, was served on 15-1-1953 with an order dated 22-12-1952 by the Government imposing the penalty of compulsory retirement. The petitioner appealed that order to the Governor of Madras. After the formation of Andhra State, the appeal papers were transferred to the Governor of Andhra. When the petitioner sought information from the Governor of Andhra, the Secretary replied that the petition had been sent to the Secretary to Government, Public Works Department, Andhra, for disposal.
The petitioner contended that the Governor's action in asking the Government to dispose of the appeal was without jurisdiction and undermined the appellate process (arguing that the authority which passed the original order was being asked to dispose of the appeal). He applied for a writ of certiorari seeking to quash the orders of both the Governor and the Government. The court issued notice to the Advocate General to argue whether a writ would lie against the Governor of Andhra.
Legal Issues Presented
- Whether a writ of certiorari would lie against the Governor of Andhra in the circumstances of this case.
- What is the scope of the immunity afforded to the Governor by Article 361(1) of the Constitution — specifically, whether that immunity is confined to powers and duties conferred under the Constitution or extends to powers conferred on the Governor otherwise (for example, under statutory rules such as R. 20(c) of the Madras Civil Services Rules).
- Whether the Governor could lawfully send an appeal to the Government (the subordinate authority whose order was being appealed) for disposal, and if so, whether that act fell within the Governor's protected functions under Article 361.
Arguments of the Parties
Petitioner's Arguments
- The immunity in Article 361(1) is confined to powers and duties conferred on the Governor under the Constitution and does not extend to powers conferred otherwise (for example, by statutory rules).
- The Governor had the power and duty to entertain and hear the appeal under R. 20(c) of the Madras Civil Services Rules, and the immunity in Article 361(1) cannot be extended to the exercise of powers under those rules.
- The Governor's action in asking the Government to dispose of the appeal was without jurisdiction and reduced the appellate remedy to a farce because the same authority (the Government) whose order was under appeal was asked to decide the appeal.
- The petitioner sought a writ of certiorari to quash the orders of both the Governor and the Government.
Respondent's / Advocate-General's Arguments
- Article 361 makes a distinction between acts that are powers and duties of the Governor's office and acts unconnected with that office: in the former case there is an absolute bar to judicial process, while in the latter case protection is only limited.
- By implication, the Advocate-General argued that Article 361's immunity should be read broadly to protect official acts of the Governor, distinguishing them from personal acts not connected to the office.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Biman Chandra Bose v. Governor, West Bengal, AIR 1952 Cal 799 | Article 361 affords immunity to the Governor in respect of official acts and also in respect of acts purporting to be done in exercise of the powers and duties of the office; clause (1) gives a wide bar and clause (4) supplies a partial bar for personal acts (notice requirement). | The court relied on this authority to interpret Article 361 as creating absolute immunity for official acts (and acts purporting to be official) while distinguishing those from personal acts which attract a limited immunity. |
| G.D. Karkare v. T.L. Shevde, AIR 1952 Nag 330 | Confirmed that immunity under Article 361 covers acts purporting to be done by the Governor in exercise of his powers, and that immunity is personal to the Governor but does not place such actions beyond judicial scrutiny where review can be conducted without issuing process on the Governor. | The court cited this case to support the proposition that acts professing to be done in pursuance of the Constitution may still attract Art. 361 protection, and that courts retain the capacity to examine the legality of such acts even if process cannot be issued against the Governor personally. |
| Lakshman Singh v. Raj Pramukh of Madhya Bharat, AIR 1953 Madh-B 54 | Held that Article 361 affords complete immunity to the Rajpramukh for exercise and performance of the powers and duties of the office and in respect of acts purporting to be done in exercise of those powers and duties. | Used as additional support for the interpretation that Art. 361 grants full immunity for official acts and acts purporting to be official in character. |
Court's Reasoning and Analysis
The court began by reciting Article 361 and identifying the central interpretive question as the meaning and scope of "the powers and duties of his office" as used in that Article. The court observed earlier case-law that had read Article 361 broadly to protect official acts and acts purporting to be done in the exercise of official powers, while distinguishing such immunity from personal acts for which only a limited protection (e.g., notice requirement) exists.
The court analysed what counts as the Governor's powers and duties by reference to the Constitution itself. It noted that Articles 154, 161 and 162 prescribe executive and certain judicial powers vested in the Governor, and that these are the powers conferred on the Governor under the Constitution. The court then recognised that, in addition to powers directly conferred by the Constitution, other bodies (Parliament, State Legislatures, or statutes and rules made under statutory authority or under Article 309) may confer powers or impose duties on the Governor; such powers, when conferred on the Governor qua Governor, are nonetheless powers exercisable by virtue of his office.
The court articulated a threefold categorisation (as set out in the opinion):
- First category: Powers conferred on the Governor qua Governor (official acts) — these attract absolute immunity under Article 361 and cannot be the subject of process against the Governor.
- Second category: Powers conferred on the Governor qua Governor but in a different capacity (for example, ex officio roles) — these are treated differently from purely personal acts.
- Third category: Acts done by the Governor in a personal capacity (examples in the opinion include borrowing money, executing promissory notes, making speeches in another capacity, defamatory writing, breaches of contract) — these attract only the limited immunity contemplated by clause (4) of Article 361 (for civil proceedings, the notice requirement applies).
Applying this framework, the court found that the appellate power under the statutory rules (the rules conferring the appellate jurisdiction on the Governor) was a power conferred on the Governor in his capacity as Governor. The Governor's act of sending the appeal back to the Government for disposal, though potentially objectionable on jurisprudential grounds, was performed in the exercise (or professed exercise) of powers conferred on him. Consequently, Article 361 protected the Governor from being made answerable to the court for that act and from being subject to process in respect of it.
The court also emphasised that Article 361's immunity for official acts extends to acts purporting to be done in exercise of those powers so long as the Governor is not guilty of dishonesty or bad faith. At the same time, the court made clear that Article 361 does not preclude the petitioner from proceeding against the Government itself (Article 361 contains a proviso that it does not restrict the right to bring appropriate proceedings against the Government).
Holding and Implications
Holding: The application against the Governor is dismissed. The court ordered that a rule nisi be issued against the Government returnable in four weeks, and directed that appropriate orders follow ("Order accordingly").
Implications:
- Direct effect on the parties: The petitioner cannot obtain the relief sought against the Governor because the Governor's act of sending the appeal to the Government was treated as an act done in the exercise (or purporting to be in the exercise) of powers of his office and thus immune from process under Article 361. The petitioner is, however, not precluded from pursuing proceedings against the Government itself; the court issued a rule nisi against the Government.
- Broader implications: The opinion applies and explains existing interpretations of Article 361 (as reflected in the precedents cited) but does not purport to lay down a novel constitutional principle beyond those authorities. The decision affirms that statutory powers conferred on the Governor qua Governor are covered by Article 361's protection.
Judgement
This is an application for issuing a writ of certiorari to quash the orders passed by the Government of Andhra and the State of Andhra.
2. The petitioner is a B.E. of the Madras University. He was working in the II Circle as an Assistant Engineer. On 15-1-1953, an order of Government dated 22-12-1952 was served on him imposing the penalty of compulsory retirement. Against that order, he preferred an appeal to the Governor of Madras. After the Andhra State was formed, the papers were transferred to the Governor of Andhra for disposal.
When he wrote to the Governor of Andhra for information, he received a reply from the Secretary that his petition was sent to the Secretary to Government, Public Works Department, Andhra, for disposal. Among other grounds, he claimed that the action of the Governor in asking the Government to dispose of the appeal was without jurisdiction and reduced the provisions for an appeal to a farce, as the very authority which passed the original orders was asked to dispose of the appeal. He asks for the issue of a writ of certiorari to quash the order of the Governor, as well as the Government.
3. I gave notice to the Advocate General to argue the point, whether a writ would lie in the circumstances against the Governor of Andhra. I am grateful to him for the assistance he has given to the Court.
4. The learned counsel for the petitioner contended that the immunity given to the Governor in Art. 361(1) of the Constitution is confined to the powers and duties conferred on him under the Constitution and not to powers and duties conferred on him otherwise. He would say that the Governor has the powers to entertain an appeal and a duty to hear it under R. 20(c) of the Madras Civil Services Rules and the immunity given under Art. 361(1) cannot be extended to the powers exercisable by him under those rules, whereas the learned Advocate-General broadly contended that Art. 361 makes a distinction between the powers and duties of the Governors Office and his acts unconnected with that office, and that, in the former case, there is an absolute bar from any process of Court, whereas in the latter case, it is only protected to a limited extent.
5. It will be convenient at this stage to notice the relevant provisions of the Constitution and the case-law throwing some light on those provisions.
"Article 361(1) : The President, or the Governor, or the 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.
XX XX XX
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 or the Rajapramukh 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 or the Rajapramukh 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 or Rajapramukh 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 the Governor or Rajpramukh of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor or Rajpramukh 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 the place of residence of the party by whom such proceedings are to be instituted and the relief which he claims."
6. The aforesaid provisions prescribe the limits of the Governors immunity against civil and criminal proceedings. Bose, J. in - Biman Chandra Bose v. Governor, West Bengal, AIR 1952 Cal 799 (A) had to consider the scope of Art. 361 in a writ, wherein the power of a Governor in nominating members to the State Legislature was questioned. At page 801 after citing the provisions of Art. 361, the learned Judge says :
"These words are wide enough to bar any interference by the Court in respect of the official acts or omissions of the Governor. But the framers of the Constitution have taken the precaution of using additional words in the Article with a view to extend the protection even in respect of acts or omissions which can be said to be incidental to the exercise of the power and performance of the duties of the office of the Governor. Consequently the Article affords immunity not only in respect of the exercise and performance of the powers and duties of the office, but also in respect of "any act done or purporting to be done by him" in the exercise and performance of those powers and duties......
A comparison of Cl. (1) of Art. 361 with Cl. (4) thereof makes it clear that in respect of official acts, an absolute bar is created but, in respect of acts done in personal capacity, a partial bar in the shape of notice for a period of two months prior to institution of a civil proceeding is imposed."
7. The Nagpur High Court in - G.D. Karkare v. T.L. Shevde, AIR 1952 Nag 330 (B) also expressed a similar view. There the appointment of the Advocate General by the Governor was sought to be questioned. It was argued that the appointment was in contravention of the Constitution, and, therefore, Art. 361 could not afford any immunity to the Governor. Dealing with that argument, the learned Judges observed at page 332 as follows :
"The argument ignores that the immunity afforded by the clause is also in respect of any act purporting to be done by the Governor in the exercise and performance of the powers and duties of his office. The expressions "purporting to be done" postulates 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."
8. The learned Judges rejected the further argument that the validity of the appointment cannot be questioned in the absence of the Governor in the following words :
"We cannot accede to the contention that because His Excellency the Governor is not amenable to the process of Court, this Court cannot examine this action in appointing the non-applicant and pronounce upon its legality. The immunity afforded by Art. 361 is personal to the Governor. That Article does not place the actions of the Governor purporting to be done in pursuance of the Constitution beyond the scrutiny of the Courts. What the Constitution establishes is supremacy of law and not of men however high placed they might be."
9. So too, the High Court of Madhya Bharat in - "Lakshman Singh v. Raj Pramukh of Madhya Bharat, AIR 1953 Madh-B 54 (C) held on a construction of Art. 361 of the Constitution that it affords complete immunity to the Rajpramukh not only in respect of the exercise and performance of the powers and duties of the office, but also in respect of "any act done or purporting to be done by him in the exercise and performance of those powers and duties."
10. 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 Art. 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 Legislatures, to make laws in respect of matters enumerated in the List given in Sch. 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 Art. 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 implication 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 President ship of a 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.
13. Under Art. 361 there is an absolute immunity for the first category of acts, but only a limited one in respect of the other two. In respect of the first he is not answerable to any Court of law. No Court can compel him to show cause or defend his action. In the case of official acts an absolute immunity from the process of Court is given 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. But this will not preclude the acts of the Governor from being questioned if they can be done without issuing a process on him. Indeed Art. 361 itself recognises that this immunity would not restrict the right of any person to bring appropriate proceedings against the Government.
14. In the instant case, appellate power is conferred on the Governor under valid statutory rules. He is authorised to exercise that power in his capacity as Governor. It is said that the said order of the Governor sending back the appeal against the Government to be decided by the Government is contrary to all principles of jurisprudence as the appellate authority has asked the subordinate authority to dispose of the appeal filed against its order. Whatever justification there may be for the comment the act complained of was one done by the Governor in exercise of the powers conferred on him or, at any rate, under a professed exercise of that power. The Governor is not answerable for his act of sending the appeal to be disposed of by the Government. The Governor is also not responsible to the Court for the manner of his disposal, for no process can be served on him. This will not preclude the petitioner from proceeding against the Government.
15. The application against the Governor is dismissed. Rule nisi is issued against the Government returnable in four weeks.
Order accordingly.
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