2005 JTR(SC) 1166
2005 AIR(SCW) 6427 ; 2006 1 JCR(SC) 170 ; 2005 7 SCC 157 ; 2005 KHC 1374 ; 2005 8 Supreme 391
2005(8) Supreme 391
Supreme Court of India
Y.K. Sabharwal, K.G. Balakrishnan, B.N. Agrawal, Ashok Bhan & Arijit Pasayat, JJ.
Rameshwar Prasad (IV) and Ors. —Petitioners
versus
Union of India & Anr. —Respondents
Writ Petitions (C) No. 257 of 2005 with Nos. 255, 258 and 353 of 2005
Decided on 8-9-2005
Important point
Immunity granted to the Governor does not affect power of Court to judicially scrutinise the attack made to the proclamation issued under Article 356(1) of the Constitution on ground of mala fides.
Act Referred :CONSTITUTION OF INDIA : Art.361
(A) The Constitution grants the Governor immunity from suit or answerability for official acts under Article 361(1), which bars this Court from issuing notice to the Governor in those capacities. However, this immunity does not preclude the Court from judicially scrutinising the Governors actions under Article 356(1) on the grounds of mala fides or ultra vires, as the expression purporting to be done does not shield unconstitutional or bad-faith exercises of power; the Government must then satisfy the court that the proclamation is within competence and not mala fide.
(B) Key principles include: immunity of the Governor under Article 361(1); non-justiciability of acts done in good faith in exercise of gubernatorial powers; scope of judicial review under Article 356(1) limited to mala fides and ultra vires; burden on the Government to justify the proclamation; and that pre-ponement of hearing does not equate to adjudication on merits.
Facts of the case:
The matter arises from writ petitions challenging the Governors role and the validity of a proclamation under Article 356(1). The petitioners sought notice to the Governor, while the respondents argued for immunity. The Court reserved orders after hearing arguments and later pre-poned the hearing, with some petitioners withdrawing stay applications.
Findings of Court:
The Court accepted the submissions on immunity and reserved detailed reasons, holding that it may not issue notice to the Governor, while reserving the power to examine mala fides or ultra vires challenges to the proclamation.
Issues:
Whether the Governor is amenable to notice in these writ petitions; whether the Court can examine the proclamation under Article 356(1) on grounds of mala fides or ultra vires; and the effect of Article 361(1) on such scrutiny.
Ratio Decidendi:
Article 361(1) confers immunity from being issued notice to the Governor, but does not bar judicial review of the proclamation under Article 356(1) for mala fides or ultra vires, with the onus on the Government to satisfy the court of the validity of the action.
Result:
The applications for stay of elections are disposed of as not pressed; the hearing is pre-poned; and the Court reserves detailed reasons subject to later examination of mala fides or ultra vires grounds.
(A) The Constitution grants the Governor immunity from suit or answerability for official acts under Article 361(1), which bars this Court from issuing notice to the Governor in those capacities. However, this immunity does not preclude the Court from judicially scrutinising the Governors actions under Article 356(1) on the grounds of mala fides or ultra vires, as the expression purporting to be done does not shield unconstitutional or bad-faith exercises of power; the Government must then satisfy the court that the proclamation is within competence and not mala fide.
(B) Key principles include: immunity of the Governor under Article 361(1); non-justiciability of acts done in good faith in exercise of gubernatorial powers; scope of judicial review under Article 356(1) limited to mala fides and ultra vires; burden on the Government to justify the proclamation; and that pre-ponement of hearing does not equate to adjudication on merits.
Facts of the case:
The matter arises from writ petitions challenging the Governors role and the validity of a proclamation under Article 356(1). The petitioners sought notice to the Governor, while the respondents argued for immunity. The Court reserved orders after hearing arguments and later pre-poned the hearing, with some petitioners withdrawing stay applications.
Findings of Court:
The Court accepted the submissions on immunity and reserved detailed reasons, holding that it may not issue notice to the Governor, while reserving the power to examine mala fides or ultra vires challenges to the proclamation.
Issues:
Whether the Governor is amenable to notice in these writ petitions; whether the Court can examine the proclamation under Article 356(1) on grounds of mala fides or ultra vires; and the effect of Article 361(1) on such scrutiny.
Ratio Decidendi:
Article 361(1) confers immunity from being issued notice to the Governor, but does not bar judicial review of the proclamation under Article 356(1) for mala fides or ultra vires, with the onus on the Government to satisfy the court of the validity of the action.
Result:
The applications for stay of elections are disposed of as not pressed; the hearing is pre-poned; and the Court reserves detailed reasons subject to later examination of mala fides or ultra vires grounds.
Order
1. Mr. P.S. Narasimha, learned counsel for the petitioner in Writ Petition (C) No. 353 of 2005, made his submissions from 10.30 a.m. to 10.40 a.m. Mr. Soli J. Sorabjee, learned Senior Counsel for the petitioners in Writ Petition (C) No. 257 of 2005, made his submissions for five minutes. Thereafter, Mr. Viplav Sharma, petitioner in person in Writ Petition (C) No. 258 of 2005, thereafter resumed his submissions and concluded at 12.20 p.m. Thereafter, Mr. Milon K. Banerji, learned Attorney General, made his submissions till 1.00 p.m. Mr. Gopal Subramanium, learned Additional Solicitor General, appearing for the Union of India, thereafter made his submissions till 3.00 p.m.
2. Hearing concluded. Orders reserved.
3. In terms of the signed order, the Court, while giving brief reasons, accepted the submissions of the learned Attorney General and the learned Additional Solicitor General that this Court may not issue notice to the Governor, and stated that it will give detailed reasons later.
4. The hearing of the writ petitions is preponed; instead of 27.9.2005, the arguments in these matters would commence on 20.9.2005. Before 20.9.2005, the parties shall also file their written submissions. The petitioners would be permitted to make oral submissions on 20.9.2005 and 21.9.2005. The respondents would be permitted to make their submissions on 22.9.2005, 27.9.2005 and 28.9.2005. On 29.9.2005, the petitioners will make submissions in reply and the hearing will conclude on that day.
5. In view of the preponement of the date of hearing, Mr. P.S. Narasimha, learned counsel for the petitioner in Writ Petition (C) No. 353 of 2005 and Mr. Viplav Sharma, appearing in person in Writ Petition (C) No. 258 of 2005, do not press their applications for grant of stay of elections. These applications are, accordingly, disposed of as not pressed.
6. On the question whether the Governor could be impleaded in his capacity as the Governor and whether notice could be issued to him on the writ petitions in the context of averments made and the prayers contained in the petitions and other aspects highlighted in the order dated 31.8.2005, we have heard Mr. Soli J. Sorabjee, learned Senior Counsel appearing in Writ Petition (C) No. 257 of 2005, and Mr. Viplav Sharma, petitioner in person in Writ Petition (C) No. 258 of 2005. We have also heard the submissions made by Mr. Milon K. Banerji, Attorney General and Mr. Gopal Subramanium, learned Additional Solicitor General.
7. 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 purporting to be done by him in exercise and performance of those powers and duties. It is submitted by the learned Attorney General and the Additional Solicitor General that in view of Article 361(1), this Court may not issue notice to the Governor. While we accept the submission but, at the same time, it is also necessary to note that the immunity granted to the Governor does not affect the power of the court to judicially scrutinise the attack made to the proclamation issued under Article 356(1) of the Constitution on the ground of mala fides or it being ultra vires. 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. Even, the expression “purporting 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 ground of mala fides or proclamation being ultra vires would not be examined by the Court. At this stage, we have not examined the question whether the exercise of power by the Governor was mala fide or ultra vires or not. That is a question still to be argued.
8. These are our brief reasons. We will give detailed reasons later.
Order accordingly.
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