Madras High Court
S. Nalini vs The Governor Of Tamil Nadu on 18 July, 2019
Equivalent citations: AIR 2019 MADRAS 281, AIRONLINE 2019 MAD 379, 2019 (3) KLT SN 63 (MD), (2019) 3 MAD LW 769, (2019) 6 MAD LJ 129
Author: R. Subbiah
Bench: R.Subbiah, C.Saravanan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders Reserved on: 15.07.2019
Orders Pronounced on : 18.07.2019
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBBIAH
and
THE HONOURABLE MR.JUSTICE C.SARAVANAN
Writ Petition S.R. No. 67881 of 2019
S. Nalini
W/o Sriharan @ Murugan
Convict No.810
Special Prison for Women
Vellore. .. Petitioner
Versus
1. The Governor of Tamil Nadu
Raj Bhavan, Chennai-600 022.
2. The State of Tamil Nadu
Rep. by the Principal Secretary to Government
Home, Prohibition and Excise Department
Secretariat, Chennai-600 009.
3. The Superintendent of Prison
Special Prison for Women
Vellore-2 .. Respondents
Petition filed under Article 226 of the Constitution of India, praying for
issuance of a Writ of Mandamus to direct the respondent No.1 to countersign the
proposal of respondent No.2-State of Tamil Nadu to release the petitioner, made on
09.09.2018 immediately.
For petitioner : Mr. M. Radhakrishnan
For respondents : Mr. Vijay Narayan, Advocate General
assisted by Mr.V.Shanmuga Sundar, Spl.G.P. for R-1
http://www.judis.nic.in Mr.V.Jayaprakash Narayanan, Govt. Pleader (i/c)
for RR-2 and 3
2
ORDER
R. Subbiah, J The petitioner has filed the above Writ Petition praying for issuance of a Writ of Mandamus to direct the respondent No.1 to countersign the proposal of respondent No.2-State of Tamil Nadu made on 09.09.2018 and to release her immediately.
2. As this Writ Petition was filed arraying the Governor of Tamil Nadu as the first respondent, Registry had raised doubt as regards the maintainability of the Writ Petition, accordingly, this writ petition was listed under the caption "for maintainability".
3. The Registry had returned the papers submitted by the petitioner for the following clarifications:
"As per Art.361 Constitution of India, it has been stated that the President or Governor of a State shall not be answerable to any Court for the exercise and performance of the powers and duties of the Office or for any act done or purported to be done by him in the exercise and performance of those powers and duties:
and It may be clarified for arraying the Hon'ble Governor as the 1st respondent of this Writ petition is against the Provisions of the Constitution as stated above -- the same to be clarified and hence maintainability arises.
Subject to maintainability:
1. Copy of the Petitioner's representation not filed in the Typed-set.
2. Copy of the proposal made on 09.09.2018 by http://www.judis.nic.in the 2nd Respondent as stated in the prayer portion to be filed in the Typed-set."3
4. When the Writ Petition was taken up for consideration under the caption "for maintainability", Mr. Radhakrishnan, learned counsel for the petitioner submitted that he had re-presented the papers by clarifying the above points raised by the Registry, as extracted above, with the following endorsement:
"1. No representation is necessary.
2. The proposal mentioned in the prayer Clause is confidential. This proposal is available with Respondent No.1
3. Interpretation of Article 361 cannot be made by the Registry.
4. W.P.No.14261/2019 was filed by the Petitioner for a direction to the State of Tamil Nadu. This W.P. is filed for a direction to the Governor of Tamil Nadu.
5. This WP against the Governor of Tamil Nadu, is maintainable in law. In 2017, the Hon'be Court entertained a WP filed against the Governor of Tamil Nadu (WP No.23557 / 2017).
6. Maintainability of a WP can be decided only by the Hon'ble Court and not by the Registry."
5. By referring to the endorsement made above, the learned counsel for the petitioner submitted that the Writ Petition is maintainable in law. He further submitted that this Court in W.P.No. 23557 of 2017, by order dated 09.10.2017, had entertained the Writ petition filed against the Governor of Tamil Nadu. In WP No. 23557 of 2017, the petitioner therein prayed for issuing a Mandamus directing the respondent No.1/Governor of Tamil Nadu to invite the second respondent/Chief Minister of the State to immediately prove his majority in the Tamil Nadu Legislative Assembly. Thus, the learned counsel for the petitioner submitted that there is a precedent to show that the Governor of the State can also be impleaded in a writ proceedings and consequently a Mandamus can be issued to the Governor of the http://www.judis.nic.in State if he fails to discharge his constitutional duty. The learned counsel for the 4 petitioner proceeded to contend that WP No. 23557 of 2017 filed earlier is akin to the one sought for in the present writ petition and therefore also, the writ petition is maintainable under Article 226 of The Constitution of India.
6. Mr. Vijay Narayan, learned Advocate General appearing for the respondents would vehemently oppose the maintainability of the writ petition. According to the learned Advocate General, since the petitioner is seeking for a direction to the Governor of the State, such a relief is hit by Article 361 of The Constitution of India. By referring to Article 361 of The Constitution of India, the learned Advocate General would contend that The Governor of a State was conferred with certain immunity and privileges and thus he is not answerable to any Court in relation to the exercise and performance of his Constitutional obligations. In the present case, the petitioner is seeking a direction to the Governor of the State to exercise his powers under Article 161 of The Constitution of India and grant pardon to the petitioner. Even assuming that the Governor did not take any action on the advise tendered by the Council of Ministers of the State, the same will not give rise to a cause of action for the petitioner to file the present writ petition impleading the Governor of the State. The powers vested with the Governor to grant pardon, reprieve, respite or remission under Article 161 of The Constitution of India cannot be called in question by any one in the light of the immunity conferred upon him under Article 361 of The Constitution of India.
7. In order to buttress his submission, the learned Advocate General placed reliance on the decision of the Constitutional Bench of the Honourable http://www.judis.nic.in Supreme Court in the case of Rameshwar Prasad vs. Union of India reported in 5 (2006) 2 Supreme Court Cases 1 to contend that the President and Governor of a State are not answerable to any Court for the exercise and performance of their powers and duties. Therefore, the learned Advocate General would contend that there is a constitutional bar under Article 361 of The Constitution of India and therefore, the Governor of the State cannot be called upon to answer this Court with respect to the averments made by the petitioner in the affidavit filed in support of this writ petition.
8. The learned Advocate General has also relied on the Division Bench judgment of the Bombay High Court in the case of Shri. Pratap Sing Raojirao Rane and others vs. The Governor of Goa & others reported in AIR 1999 Bombay 53, as also the decision of the Full Bench of this Court in the case of K.A. Mathialagan and others vs. The Governor of Tamil Nadu and others, reported in AIR 1973 Madras 198 to contend that even if there are allegations of mala-fide nature, the Governor of the State is not answerable to such allegations. The learned Advocate General for the State has also relied on the decision of the Honourable Supreme Court in the case of Nabam Rebia vs. The Registrar General, Gauhati High Court reported in 2016 SCC Online SC 94, wherein the Honourable Supreme Court even recalled the notice issued to the Governor. The learned Advocate General therefore submits that the writ petition is not maintainable under Article 226 of The Constitution of India as it would infringe the constitutional right conferred on the Governor of the State under Article 361 of The Constitution of India. The learned Advocate General therefore would contend that the writ petition is not maintainable and need not be entertained by this Court. http://www.judis.nic.in 6
9. By way of reply, the learned counsel for the petitioner, by relying on the Constitutional Bench decision of the Honourable Supreme Court in the case of Rameshwar Prasad, mentioned supra, would contend that in the said cases, even though it was held that the Governor functions on the advice of the Council of Ministers and that he is not answerable to the Court and as such, only the State is answerable, and according to the counsel for the petitioner, if any action has been taken by the Governor or he fails to discharge his constitutional obligations, then such action of the Governor can be questioned before this Court. In the present case, the Governor of Tamil Nadu did not discharge his constitutional duty by not considering the advice tendered by the Council of the Ministers of the State for more than ten months and therefore, a Mandamus can be issued to the Governor. The advice tendered by the Council of Ministers will be binding on the Governor and whenever an advice is given, the Governor ought to have swiftly acted upon the same without causing any delay. Therefore, the learned counsel for the petitioner would contend that while exercising the power under Article 161 of The Constitution of India, the Governor of a State has no discretion whatsoever and the advise tendered by the Council of Ministers of the State binds him and he cannot take a contrary view other than the one advised by the Council of Ministers.
10. Further, the learned counsel for the petitioner would contend that the inaction on the part of the Governor of the State has resulted in the continuance of the petitioner under incarceration and it is in violation of Article 21 of The Constitution of India. In this context, the learned counsel for the petitioner relied on the decision of the Honourable Supreme Court in the case of State of Rajasthan http://www.judis.nic.in vs. Union of India reported in (1977) 3 Supreme Court Cases 592 to drive home 7 the point that the Constitutional Courts are bound to uphold the constitutional value and enforce the constitutional limitations, which is the essence of the rule of law. In any event, since the issue involved in this writ petition requires interpretation of Article 161 of The Constitution of India in the touchstone of Article 361 (1) of The Constitution of India, the writ petition has to be entertained and it is maintainable.
11. We have heard the learned counsel for the petitioner and the learned Advocate General appearing for the State. The learned Advocate General vehemently opposed the maintainability of this writ petition as against the Governor of the State by contending that Governor of the State is not amenable and/or answerable to any Court with respect to discharge of his constitutional obligations. It is further contended that the entertaining of this writ petition as against the Governor of the State will defeat the object with which certain privileges and immunity were conferred on the Governor of the State under Article 361 of The Constitution of India.
12. However, the learned counsel for the petitioner would contend that this Court entertained W.P. No. 23557 of 2017 without regard to the question of maintainability of the writ petition as against the Governor of the State. On perusal of the order dated 09.10.2017 passed in WP No. 23557 of 2017, it is evident that the Registry of this Court did not question the maintainability of WP No. 23557 of 2017 considering the nature of prayer sought for therein. Even in that Writ Petition, by order dated 09.10.2017, this Court has summarily dismissed the Writ Petition without adverting to the correctness or otherwise of the array of parties, particularly http://www.judis.nic.in with respect to filing of the writ petition as against the Governor of the State. In any 8 event, the WP No. 23557 of 2017 filed before this Court cannot be cited as a precedent to contend that this writ petition filed as against the Governor of the State is also maintainable.
13. It is the submission of the learned counsel for the petitioner that in this case, Article 361 of the Constitution of India is not applicable. In view of the said submission, it would be appropriate to extract Article 361 of the Constitution of India and to examine as to whether such submission of the counsel for the petitioner could be sustained. Article 361 of the Constitution of India reads as follows:
Article 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 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 http://www.judis.nic.in 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 9 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."
14. Further, it would also be appropriate to look into the decision of the Constitutional Bench of the Supreme Court in the case of Rameshwar Prasad Vs. Union of India reported in 2006 (2) SCC 1, which was also relied on by the counsel for both sides, wherein the Apex Court held as follows:
"Point 4 What is the scope of Article 361 granting immunity to the Governor?
170. By order dated 8-9-2005 [Rameshwar Prasad (IV) Vs. Union of India - 2005 (7) SCC 157] we held that the Constitution 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 judicially scrutinise attack made on the proclamation issued under Article 356(1) of the Constitution on the ground of mala fides 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 eye 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 the 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.
http://www.judis.nic.in
171. In our order dated 8-9-2005 [Rameshwar Prasad (IV) Vs. Union of India - 2005 (7) SCC 157] while 10 giving the brief reasons we stated that detailed reasons will be given later.
172. 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 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 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.”
173. A plain reading of the aforesaid article shows http://www.judis.nic.in 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 11 performance of their powers and duties. Most of the actions are taken on the aid and advice of the 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 mala fides are required to be defended by the Union of India or the State, as the case may be. Even in cases where personal mala fides 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 mala fides 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 the President or the Governor for even filing of affidavit to assist the Court. Filing of an affidavit on one's own volition is one thing than the 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 mala fides".
15. Further, the Apex Court, in the subsequent judgment in the case of Nabam Rebia Vs. Gauhati High Court), reported in 2016 SCC Online SC 94, by following the decision of the above Constitution Bench of the Supreme Court reported in 2006 (2) SCC 1 (cited supra), observed that, "Based on the conclusion recorded by the Constitution Bench, it was the submission of the learned Attorney General, that there was a complete immunity to the Governor under Article 361 of the Constitution of India, and that, even notice could not be issued to the Governor." Accordingly, the Honourable Supreme Court even recalled the notice issued http://www.judis.nic.in to the Governor of the State. 12
16. It is to be stated that Article 361 of The Constitution of India insulates the Governor of the State from being questioned or make him answerable before any Court with respect to the discharge of his official duties. Article 361 of The Constitution of India gives complete immunity and privilege to the Governor of the State in discharge of his constitutional obligation. Therefore, questioning the discharge of act of the Governor or failure to discharge his constitutional obligations cannot be subjected to judicial scrutiny under Article 226 of The Constitution of India by arraying him as a party to the writ proceedings. In this case, even assuming that the Governor of the State did not take into account the Advice given by the Council of the Ministers, it will not be a ground for the petitioner to file this writ petition and contend that the protection of life and personal liberty guaranteed under Article 21 of the Constitution of India has been infringed. The privileges and immunity conferred on the Governor of the State under Article 361 of The Constitution of India is a clear bar for the petitioner to file the present writ petition. The Governor of the State cannot therefore be equated with the instrumentalities of the Government enumerated under Article 12 of The Constitution of India who are amenable to the jurisdiction of this Court under Article 226 of The Constitution of India.
17. Thus, in the light of the above discussions and decisions of the Supreme Court, it is abundantly clear that the Governor of the State is insulated from being questioned or made answerable to the Courts with respect to discharge of his constitutional functions and duties. The immunity so conferred on the Governor of the State is unfettered and it cannot be intruded by this Court in http://www.judis.nic.in exercise of the power conferred under Article 226 of The Constitution of India. The 13 personal immunity under Article 361 of the Constitution of India is clear and specific in not to proceed against the President or a Governor of a State, and therefore, the present writ petition, arraying the Governor of the State as respondent No.1 is not maintainable.
18. In the light of the above observations, we hold that the objections raised by the Registry as regards the maintainability of this writ petition are sustained. Consequently, we reject WP SR No. 67881 of 2019 of the petitioner.
(R.P.S.J) (C.S.N.J)
18.07.2019
Index : Yes
Speaking Order: Yes
rsh/cs
To
1. The Governor of Tamil Nadu
Raj Bhavan, Chennai - 600 022
2. The State of Tamil Nadu
Rep. by the Principal Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009
3. The Superintendent of Prison Special Prison for Women Vellore-2.
http://www.judis.nic.in 14 R. SUBBIAH, J and C. SARAVANAN, J cs Order in W.P.S.R.67881 of 2019 18.07.2019 http://www.judis.nic.in