Madhya Pradesh Special Police ...

vs State Of Madhya Pradesh & Ors on 5 November, 2004

Supreme Court of India

PETITIONER:
Madhya Pradesh Special Police Establishment

RESPONDENT:
State of Madhya Pradesh & Ors.

DATE OF JUDGMENT: 05/11/2004

BENCH:
N. Santosh Hegde, S. N. Variava, B. P. Singh, H. K. Sema & S. B. Sinha

JUDGMENT:

J U D G M E N T [Arising out of SLP (C) Nos. 7697-7698 of 2003] S. N. VARIAVA, J.

Leave granted.

These Appeals are against the Judgment of the Madhya Pradesh High Court dated 10th January,
2003.

Briefly stated the facts are as follows:

Respondents No. 4 (in both these Appeals), i.e. Rajender Kumar Singh and Bisahu Ram Yadav, were
Ministers in the Government of M. P. A Complaint was made to the Lokayukta against them for
having released 7.5 acres of land illegally to its earlier owners even though the same had been
acquired by the Indore Development Authority. After investigation the Lokayukta submitted a
report holding that there were sufficient grounds for prosecuting the two Ministers under Section
13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1983 and also for the offences
of criminal conspiracy punishable under Section 120-B of the Indian Penal Code. It must be
mentioned that by the time the report was given the two Ministers had already resigned.

Sanction was applied for from the Council of Ministers for prosecuting the two Ministers. The
Council of Ministers held that there was not an iota of material available against both the Ministers
from which it could be inferred that they had entered into a criminal conspiracy with anyone. The
Council of Ministers thus refused sanction on the ground that no prima-facie case had been made
out against them.

The Governor then considered grant of sanction keeping in view the decision of the Council of
Ministers. The Governor opined that the available documents and the evidence was enough to show
that a prima-facie case for prosecution had been made out. The Governor accordingly granted

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sanction for prosecution under Section 197 of the Criminal Procedure Code.

Both the Ministers filed separate Writ Petitions under Articles 226 and 227 of the Constitution of
India assailing the Order of the Governor. A Single Judge of the High Court held that granting
sanction for prosecuting the Ministers was not a function which could be exercised by the Governor
"in his discretion" within the meaning of these words as used in Article 163 of the Constitution of
India. It was held that the Governor could not act contrary to the "aid and advice" of the Council of
Ministers. It was further held that the doctrine of bias could not be applied against the entire
Council of Ministers and that the doctrine of necessity could not be invoked on the facts of the case
to enable the Governor to act in his discretion. The Appellants filed two Letters Patent Appeals
which have been disposed off by the impugned Judgment. The Division Bench dismissed the Letters
Patent Appeals upholding the reasoning and Judgment of the Single Judge. It must be mentioned
that the authority of this Court in the case of State of Maharashtra vs. Ramdas Shrinivas Nayak
reported in 1982 (2) SCC 463 was placed before the Division Bench. The Division Bench, however,
held that the observations made therein may apply to the case of a Chief Minister but they could not
be stretched to include cases of Ministers. The question for consideration is whether a Governor can
act in his discretion and against the aid and advice of the Council of Ministers in a matter of grant of
sanction for prosecution of Ministers for offences under the Prevention of Corruption Act and/or
under the Indian Penal Code.

As this question is important, by Order dated 12th September, 2003 it has been directed that these
Appeals be placed before a Bench of five Judges. Accordingly these Appeals are before this Bench.
Article 163 of the Constitution of India reads as follows: "163. COUNCIL OF MINISTERS TO AID
AND ADVISE GOVERNOR.- (1) There shall be a Council of Ministers with the Chief Minister as 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) The question whether any, and if so what, advice was tendered by Ministers to the Governor
shall not be inquired into in any court."

Mr. Sorabjee submits that even though normally the Governor acts on the aid and advice of the
Council of Ministers, but there can be cases where the Governor is by or under the Constitution
required to exercise his function or any of them in his discretion. The Constitution of India expressly
provides for contingencies/cases where the Governor is to act in his discretion. Articles 239(2),
371A(1)(b), 371A(2)(b), 371A(2)(f) and Paragraphs 9(2) and 18(3) of the Sixth Schedule are some of
the provisions. However, merely because the Constitution of India expressly provides, in some
cases, for the Governor to act in his discretion, can it be inferred that the Governor can so act only
where the Constitution expressly so provides. If that were so then Sub-clause (2) of Article 163
would be redundant. A question whether a matter is or is not a matter in which the Governor is
required to act in his discretion can only arise in cases where the Constitution has not expressly

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provided that the Governor can act in his discretion. Such a question cannot arise in respect of a
matter where the Constitution expressly provides that the Governor is to act in his discretion. Article
163(2), therefore, postulates that there can be matters where the Governor can act in his discretion
even though the Constitution has not expressly so provided.

Mr. Sorabjee relies on the case of Samsher Singh vs. State of Punjab, reported in 1974 (2) SCC 831. A
seven Judges' Bench of this Court, inter alia, considered whether the Governor could act by
personally applying his mind and/or whether, under all circumstances, he must act only on the aid
and advice of the Council of Ministers. It was inter alia held as follows:

"54. The provisions of the Constitution which expressly require the Governor to exercise his powers
in his discretion are contained in articles to which reference has been made. To illustrate, Article
239(2) states that where a Governor is appointed an administrator of an adjoining Union territory
he shall exercise his functions as such administrator independently of his Council of Ministers. The
other articles which speak of the discretion of the Governor are paragraphs 9(2) and 18(3) of the
Sixth Schedule and Articles 371A(1)(b), 371A(1)(d) and 371A(2)(b) and 371A(2)(f). The discretion
conferred on the Governor means that as the constitutional or formal head of the State the power is
vested in him. In this connection, reference may be made to Article 356 which states that the
Governor can send a report to the President that a situation has arisen in which the government of
the State cannot be carried on in accordance with the provisions of this Constitution. Again Article
200 requires the Governor to reserve for consideration any Bill which in his opinion if it became
law, would so derogate from the powers of the High Court as to endanger the position which the
High Court is designed to fill under the Constitution.

55. In making a report under Article 356 the Governor will be justified in exercising his discretion
even against the aid and advice of his Council of Ministers. The reason is that the failure of the
constitutional machinery may be because of the conduct of the Council of Ministers. This
discretionary power is given to the Governor to enable him to report to the President who, however,
must act on the advice of his Council of Ministers in all matters. In this context Article 163(2) is
explicable that the decision of the Governor in his discretion shall be final and the validity shall not
be called in question. The action taken by the President on such a report is a different matter. The
President acts on the advice of his Council of Ministers. In all other matters where the Governor acts
in his discretion he will act in harmony with his Council of Ministers. The Constitution does not aim
at providing a parallel administration within the State by allowing the Governor to go against the
advice of the Council of Ministers.

56. Similarly Article 200 indicates another instance where the Governor may act irrespective of any
advice from the Council of Ministers. In such matters where the Governor is to exercise his
discretion he must discharge his duties to the best of his judgment. The Governor is required to
pursue such courses which are not detrimental to the State."

The law, however, was declared in the following terms: "154. We declare the law of this branch of
our Constitution to be that the President and Governor, custodians of all executive and other powers
under various articles shall, by virtue of these provisions, exercise their formal constitutional powers

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only upon and in accordance with the advice of their Ministers save in a few well-known exceptional
situations. 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; (c) 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. We do not examine in detail the constitutional proprieties in these
predicaments except to utter the caution that even here the action must be compelled by the peril to
democracy and the appeal to the House or to the country must become blatantly obligatory. We have
no doubt that de Smith's statement (Constitutional and Administrative law by S. A. de Smith
Penguin Books on Foundations of law), regarding royal assent holds good for the President and
Governor in India:

"Refusal of the royal assent on the ground that the Monarch strongly disapproved of a Bill or that it
was intensely controversial would nevertheless be unconstitutional. The only circumstances in
which the withholding of the royal assent might be justifiable would be if the Government itself were
to advise such a course a highly improbable contingency or possibly if it was notorious that a Bill
had been passed in disregard to mandatory procedural requirements; but since the Government in
the latter situation would be of the opinion that the deviation would not affect the validity of the
measure once it had been assented to, prudence would suggest the giving of assent"."

Thus, as rightly pointed out by Mr. Sorabjee, a seven Judges' Bench of this Court has already held
that the normal rule is that the Governor acts on the aid and advice of the Council of Ministers and
not independently or contrary to it. But there are exceptions under which the Governor can act in
his own discretion. Some of the exceptions are as set out hereinabove. It is however clarified that the
exceptions mentioned in the Judgment are not exhaustive. It is also recognized that the concept of
the Governor acting in his discretion or exercising independent judgment is not alien to the
Constitution. It is recognized that there may be situations where by reason of peril to democracy or
democratic principles an action may be compelled which from its nature is not amendable to
Ministerial advice. Such a situation may be where bias is inherent and/or manifest in the advice of
the Council of Ministers.

Mr. Sorabjee also points out that this Court in the case of Ramdas Shrinivas Nayak (supra) has
carved out a further exception. In this case, an MLA filed a complaint against the then Chief
Minister of Maharashtra in the Court of Metropolitan Magistrate, 28th Court, Esplanade, Bombay,
charging the Chief Minister with commission of offences punishable under Sections 161 and 185 of
the Indian Penal Code and Section 5 of the Prevention of Corruption Act. The Metropolitan
Magistrate refused to entertain the complaint without requisite sanction of the Government under
Section 6 of the Prevention of Corruption Act. Against the Order of the Metropolitan Magistrate,
R.S. Nayak filed a Criminal Revision Application in the High Court of Bombay wherein the State of
Maharashtra and Shri Antulay were impleaded as Respondents. During the pendency of this
Criminal Revision Application, Shri Antulay resigned as the Chief Minister of the State of
Maharashtra. A Division Bench of the Bombay High Court dismissed the Revision Application, but

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