S. Dharmalingam vs His Excellency Governor of the State of Tamil Nadu and Another

Mohan, J.—The writ petition has been preferred by an advocate of this Court. The respondents cited are L1. His Excellency the Governor

of Tamil Nadu, 2. The Chief Minister of the State of Tamil Nadu Smt V.N. Janaki Ramachandran and 3. the Chief Secretary to the Government of

Tamil Nadu, Fort St. George, Madras.

The facts as averred shortly in his affidavit are as follows: -- The second respondent had paraded some of the members of the Legislative

Assembly on 2nd January 1988 before the residence of the first respondent (Governor). The Governor asked the second respondent to form the

ministry of A.I.A.D.M.K. on condition that the second respondent would show on the floor of the Assembly the strength of the supported

majority. The petitioner would state that the Governor had hot subjectively satisfied himself and yet prepared to give a long rope to the second

respondent and thereby giving room for speculation regarding the stability and strength of the ministry of the State of Tamil Nadu.

The act of the Governor is not constitutional, because India has adopted the Constitution which proclaims in the preamble that the Government

is a democratic Republic. There is a distinction (discretion) in the Governor in appointing the Chief Minister and other Ministers on the advice of

the Chief Minister. In so far as the Governor has chosen to appoint the second respondent who is not a member of the Legislature, that is not in

accordance with the correct interpretation of Article 164 of the Constitution. The test of the majority ought to have been decided only on the floor

of the Assembly and not in the Governor''s house.

All the members of the Legislative Assembly of both factions stare under coercion and undue influence and the choice of a leader by either

faction is not voluntary and hence, the choosing of the Chief Minister is null and void. It is on these averments the present writ petition for quo

warranto against the 2nd respondent has been preferred, calling upon her to state on what authority, the second respondent had assumed the office

of Chief Minister of Tamil Nadu.

The office had returned the writ petition calling upon the petitioner to state as to how the writ petition is maintainable. Inter alia, one of the

returns states as to how in view of Article 361 of the Constitution of India, the writ is maintainable against the Governor, first respondent.

The learned counsel for the petitioner argued yesterday before me on the strength of the Full Bench ruling of this court, reported in K.A.

Mathialagan and Others Vs. The Governor of Tamil Nadu and Others, that the immunity conferred on the Governor under Article 361 would

relate only to his person and that too from civil and criminal proceedings alone. Such an immunity would not be available in cases of this character.

I directed, notice to the learned Advocate General with regard to the maintainability. Learned Advocate General would submit that the writ is

not maintainable. According to him, under the Constitution, the Governor exercises three kinds of powers:--

the executive power taken in the name of the Governor;

the power exercised by him with the aid and advice of Council of Ministers headed by the Chief Minister; and

the power exercised by him in his sole discretion.

Though the immunity under Article 361 is not available with regard to the first two categories of exercise of powers, viz., the executive power and

the power exercised with the aid and advice, in so far as it relates to matter where the power of the Governor comes to be exercised solely in his

discretion, he is completely immune and his action cannot be called in question. In support of this submission, reliance is placed on Samsher Singh

Vs. State of Punjab and Another, , and Madan Murari Verma Vs. Choudhuri Charan Singh and Another, , and in this case, according to the

learned Advocate General, the three questions that are raised as seen from the affidavit, are (i) the selection of the second respondent as Chief

Minister by the Governor is improper, because the majority ought to have been tested on the floor of the Assembly and not in the house of the

Governor; (ii) the support, to the second respondent given by the members of the Party is not voluntary and the Governor had not been properly

satisfied that the support is not voluntary; and (iii) that the Chief Minister is not a member of the House. Concerning this, according to the learned

Advocate General, in so far as the rulings cited above clearly lay down; more so, Madan Murari Verma Vs. Choudhuri Charan Singh and

Another, states, whether the Governor was politically justified of not in choosing a person to form the Ministry is outside the purview of court''s

jurisdiction, the ratio of the judgment squarely applied. The same is the ratio laid down in Bijayananda Patnaik and Others Vs. President of India

and Others, . In Mahabir Prasad Sharma Vs. Prafulla Chandra Ghose and Others, it was laid down that the power of Governor is absolute with

regard to appointment of Chief Minister and the Court cannot call in question the same, since it is his sole discretion.

That exactly is the position here. As a matter of fact, a Full Bench (Seven Judges) of this Court as seen from S. Ramaswami v. Union of India

1984 WLR (Suppl) 1, has laid down the same proposition.

If therefore the law is clear that with regard to the choice of Chief Minister, the Governor has got an absolute discretion, he cannot be personally

called upon to answer. In regard to this argument, reliance is made on Biman Chandra Bose Vs. Dr. H.C. Mukherjee, Governor and Others, . The

same; can also be culled from Practice and Procedure of Parliament by M.M. Kaul wherein Dr. B.R. Ambedkar, the Chairman of the Drafting

Committee remarked that it is far better to trust the President than to impose any obligation under the Constitution. In this case, not one word of

mala fide had come to be attributed to the action of the Governor. Therefore, the writ framed according to him is not maintainable.

The learned counsel for the petitioner would reiterate his submission that the power under Article 226 is not in any way controlled by Article

361 and even in Judges'' Transfer case reported in S.P. Gupta Vs. President of India and Others, , the President was impleaded as party, since his

action was questioned.

10A. I will now consider the merits of this submission only for the limited purpose of maintainability.

Article 153 of the Constitution states that there should be a Governor of its State. The succeeding Article 154 lays down that the executive

power of the State shall be vested in the Governor and shall be exercised by him either directly or through the, officers subordinate to him in

accordance with the Constitution. Thereafter, dealing with Council of Ministers, Article 163 says, there shall be a Council of Ministers with the

Chief Minister at the head to aid and advice 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. From a reading of the above, it is clear that there are certain powers which are

available to the Governor, which he could exercise in his discretion. The next Article says, the Chief Minister shall be appointed by the Governor

and the, other Ministers shall be appointed by the Governor, on the advice of the Chief Minister and the Ministers shall hold, office, during the

pleasure of the Governor.

Though the Constitution uses the words during the pleasure of the Governor, so long as the Chief Minister and the Council of Ministers headed

by him enjoy, confidence pf the House, this pleasure could remain only on paper. Therefore, the Governor has to satisfy himself that the person

who commands a majority strength in the Assembly, could alone be the Chief Minister and how he is to satisfy himself, the Constitution does not

indicate, though in certain other cases, like the proclamation of emergency for instance, Article 356 specifically states if the President oh receipt of

a report from the Governor of a State or otherwise is satisfied that a situation has arisen in which the Government of the State cannot be carried on

in accordance with the Constitution, the President may so proclaim. Such is not the case as far as Article 164 is concerned.

With this, I go on to Article 361. That lays down in Clause (1) as follows : --

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;

The question now arises, whether having regard to the averments in the affidavit, the Governor could be called upon to answer to this Court as to

how he came to call on the second respondent to form the Ministry and how he arrived at that satisfaction. From the above provisions, it is clear

that there are three kinds of power exercised by the Governor -- (i) the executive power in accordance with the provisions of Constitution, (ii)

powers exercised by him on the aid and advice of the Council of Ministers headed by the Chief Minister, and (iii) sole discretion. In so far as the

power that has come to be exercised by the Governor is wholly in his discretion, I do not think, this court can interfere at all in matters relating to

discretion. The Calcutta case makes the position very clear, because it laid down in Madan Murari Verma Vs. Choudhuri Charan Singh and

Another, , wherein Sabyasachi Mukharji, J, as he then was, stated in answering this question, whether the President was justified in calling upon the

respondent No. 1, to form the Ministry and to advise the President about the formation of the Council of Ministers as he did in the facts and

circumstances of the case. That related to the late Prime Minister Shri Choudhuri Charan Singh being called upon to form the Ministry by the then

President. In dealing with that, the learned Judge observed in paragraph No. 9, and particularly it was stated-

Whether he was politically so justified or not, is not a matter for this court to determine. This Court cannot sit in judgment on the political

assessment of the President. For that in a democratic country he is answerable at the bar of the popular verdict. The question No. 1 must therefore

be decided in favour of the respondents in view of the authorities noted and in view of the conventions so far followed and recognised

With this, I immediately go on to the Supreme Court ruling reported in Samsher Singh Vs. State of Punjab and Another, . In paragraph No.

153 the Supreme Court observed-

Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is

by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in

the House but refuses to quit office; (o) the dissolution of the House where an appeal to the country is necessitous, although in this area the Head

of State should avoid, getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the

responsibility for the step.

The Orissa High Court had again occasion to deal with the question in Bijayananda Patnaik and Others Vs. President of India and Others, as

follows -

When the Chief Minister tendered resignation of her Council of Ministers, the Governor should have called the leader of the Opposition Party to

form the Ministry without testing its strength. Governor''s decision not to call the Leader of the Opposition to form the Ministry and to recommend

for President''s Rule under Article 356 are however not justiciable and no writ can lie to quash them for the following reasons: --

(a) Breach of the above convention is not enforceable in Court; (b) The decision was not of the State Government but of the Governor without the

aid and advice of the Council of Ministers and as such Article 361(1) is a bar.

The same, position that in choosing the Chief Minister, the Governor acts without the aid and advice of the Chief Minister and the Council of

Ministers, has come to be laid down by a Full Bench (Seven Judges) of this Court in S. Ramaswami v. Union of India 1984 Mad LR (Suppl) 1.

Speaking on behalf of the Full Bench, Ismail J. as he then was, referred to Article 75 of the Constitution and the argument that if Article 75(1) is

read with Article 75(3), it would become clear that the person who could be appointed as Prime Minister, must be one who is enjoying the

confidence of the majority of the member of the House of the People i.e., Lok Sabha and that is the basic postulate of the responsible and

democratic Government and therefore Sri Charan Singh should have been called upon to establish his majority support in the Lok Sabha before he

was appointed as Prime Minister and in this case even when he was so called upon to establish his majority Support, without facing the House and

winning its support and confidence, Sri Charan Singh resigned from his Prime Ministership, thereby showing that he did not have the support of the

majority of the members of the Lok Sabha and that, therefore, his appointment and continuance are in Violation of not only the specific provision in

the Constitution, but also the basic postulate underlying the democratic Government enshrined in the Constitution. The learned Judge observed

after referring to the English conventions that-

Thus it will be seen that even in the unwritten Constitution of England, the Sovereign is given a certain amount of discretion in the choice of the

Prime Minister because at the time when the previous Government had resigned, there will be no Cabinet to really advise the Sovereign whose

advice will be binding on the Sovereign"". Then again, the learned Judge continues-

The posit ion as explained in the text books as referred to above, will show that if no person enjoying the majority support of the House is

available, the Sovereign and in our country the President can call upon the person who happens to be the leader of the largest party in the House to

form a Cabinet.

The next case that can be usefully referred to is Mahabir Prasad Sharma Vs. Prafulla Chandra Ghose and Others, . Justice Mitra observed in

that case dealing with Article 164(1)-

The Governor in making the appointment of the Chief Minister under Article 164(1) of the Constitution acts in his sole discretion. The exercise of

this discretion by the Governor cannot be called in question in High Court.

There is no warrant in the Constitution itself to read into Article 164(1) a condition or restriction that the Governor must act on the advice of a

Council of Ministers as provided in Article 163(1) in the matter of appointment of the Chief Minister. It is for him to make such enquiries as he

thinks proper, to ascertain who among the members of the Legislature ought to be appointed the Chief Minister and would be in a position to

enjoy the confidence of the majority in the Legislative Assembly of the State.

Therefore, from these cases, it is clear that the power that had come to be exercised by the Governor, falls within the domain of his sole discretion.

-

At this juncture, I may usefully refer to the Practice and Procedure of Parliament, by M.N. Kaul, page 21 :-

A suggestion was made in the Constituent Assembly that to guard against arbitrary advice by the Prime Minister for the dissolution of Lok Sabha

it might be enacted that in case the Prime Minister desired the dissolution of the House earlier than the completion of the normal term of five years,

as provided in the Constitution, he should record the reasons therefore in writing. This suggestion was not accepted by Dr. Ambedkar, the

Chairman of the Drafting Committee, for various reasons. He observed ..... I think, we could trust the President to make a correct decision

between the party leaders and the house as a whole.

If this be the position in law, then the question would arise whether Article 361 would be a bar. In the case on hand, the petitioner has not uttered

one word of mala fide or attributed bad faith to the Governor. In such a case, whether a writ will lie or not, I need not go into.

As the averments stand, the ruling in Biman Chandra Bose Vs. Dr. H.C. Mukherjee, Governor and Others, would apply, because under

Headnote (b) it was laid down-

Article 361 affords immunity not only in respect of the exercise of 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 these powers and duties.

If this immunity is therefore available, I do not think, his action falling within the domain of sole discretion could ever be questioned under Article

226.

No doubt, the petitioner would contend that under Article 226, this Court had jurisdiction to interpret every other article of the Constitution,

but as interpreted in the light of the case law, I find that the immunity of the Governor with regard to the action pertaining to his sole discretion is

absolute and beyond even the writ jurisdiction of this Court. The case reported in K.A. Mathialagan and Others Vs. The Governor of Tamil Nadu

and Others, , is one relating to the prorogation of the Assembly and that it must be noted it was on the aid and advice of the Council of Ministers.

It has been observed therein-

Under Article 361, there is an absolute immunity for the first category of acts, bat 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 Article 361 itself recognises that this immunity would not

restrict the right of any person to bring appropriate proceedings against the Government.

Such a case as the learned Advocate General would himself concede, would fall under a different category and his action would be questioned. In

the instant case, the power of the Governor as seen above had come to be exercised under Article 164 wherein there are no restraints whatever,

with regard to the duties of the Chief Minister excepting the conventional restraints and excepting his own satisfaction.

In view of the above, I hold the writ as framed is not maintainable.

This matter having been set down for being spoken to, it is hereby clarified that no further orders are necessary.