W.P.SR.No.133846 of 2022

THE HON’BLE ACTING CHIEF JUSTICE and

D.BHARATHA CHAKRAVARTHY, J.

W.P.SR.No.133846 of 2022 has been filed by one Mr.M.Kannadasan, son of Mr.P.Mari, residing at No.12/A3, KMK Garden, Kundrathur, Kancheepuram, seeking for issuance of a writ of quo warranto calling upon the third respondent / Shri.M.N.Ravi, Governor of Tamil Nadu, Chennai, to show cause under what authority of law he is holding the office of the Governor of Tamil Nadu.

2. The Registry, after scrutinizing the entire case records, returned the same to Mr.S.Doraisamy, learned counsel for the petitioner, with the following endorsements:-
3. As per Article 361(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:
4. 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.

(4) any 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……….”

In the above circumstances, it may be clarified as to how this WP is maintainable for seeking relief against the Governor.

2. It may be clarified that the Governor also acts as Chancellor of the Universities and Chairman of Indian Red Cross Society (ICRS) and therefore it may be clarified as to how it could be determined as a controvention if the Governor holds the office as Chairman of Auroville Foundation, since the Auroville Foundation Act is enacted by the Parliament and now under the Governance of the Central Government.
3. As per para-2 of the affidavit, it may be clarified as to whether the Periyar Dravidar Kazhagam is a non-political organisation?
4. Subsequently, learned counsel for the petitioner has re-presented the case papers by taking a stand among other things that (a) the immunity under Article 361 is only for any act done or purporting to be done by him in the exercise and performance of those powers and duties and not otherwise, and due to his other activities other than exercising power and performance of those powers and duties if he incur disqualification, he is no longer entitled to continue in the office of Governor and writ of quo warranto will be issued against the individual by name;

• that holding the office of a Chancellor or a Chairman of the Indian Red Cross Society is not a contravention. But receiving salary is the contravention which there is a prohibition of receiving salary and profit under Article 158(2) of the Constitution of India; and
• that the Constitution did not prohibit the mentioning the name of the Governor. The writ of quo warranto is not against the office of the Governor.  But it is against the individual person holding the office of

Governor asking under what authority, he is holding the office of the

Governor.

4. Pursuant to the re-presentation of the case, today, the matter islisted under the cation “for maintainability”.
5. S.Doraisamy, learned counsel for the petitioner, argued that the petitioner is the President of Kanchipuram District Thanthai Periyar Dravidar Kazhagam, a non-political organisation, which follows the principles of Rationalist Leader Late Thanthai Periyar, who preached that rationalism alone will reform the society. The petitioner being an Indian by birth and a law abiding citizen, is very much concerned about upholding the dignity of the Indian Constitution.
6. Learned counsel for the petitioner further argued that the third respondent/Shri R.N.Ravi was appointed as 15^th Governor of Tamil Nadu on 09.09.2021 by a warrant issued by the President of India under Article 155 of the Constitution of India and he assumed the office of the Governor of Tamil Nadu on 18.09.2021. Formerly, he was the Governor of Nagaland between August, 2019 and September, 2021. He was also holding the additional charge as a Governor of Meghalaya between December, 2019 and January, 2020.  After he assumed the office of the Governor of Tamil Nadu, he used to participate in public meetings and used to talk about the principles of “Rashtriya Swayamsevak Sangh (RSS)”.  It is further argued that the third respondent has been criticized for not disposing of the files sent to him for signature by the Government, as he has been keeping the files pending for months together without taking any decision thereon. Whileso, the petitioner has come across some social media messages criticizing the third respondent for disturbing the normal functioning of the Auroville Village, whereby it is stated that he is acting against the character of Auroville given by mother Mirra Alfassa.  Subsequently, on enquiry, the petitioner came to know that the third respondent was appointed as

Chairman of the Governing Body of the Auroville Foundation.  The Central

Government took over the Auroville by enacting the Auroville Foundation Act, 1988, and it is a spiritual institution founded by “Sri Aurobindo” and the “Mother”.  The Ministry of Education, Union of India, issued a Notification dated 06.10.2021 by exercising the powers conferred by Section 11 read with Section 12 of the Auroville Foundation Act, 1988, nominating the third respondent Shri R.N.Ravi as a Chairman of the Auroville Foundation for a period of 4 years from 06.10.2021 under Section

11(1)(i) of the Auroville Foundation Act, 1988, and along with him, 8 other persons have been nominated as its members.  Thus, from 06.10.2021, the third respondent has become full time Chairman of the Auroville Foundation.  The post of Chairman of Auroville Foundation carries the salary and other allowances, besides leave, pension and provident fund as per Section 13 of the Auroville Foundation Act, 1988, hence, it is an office of profit.

7. Referring to Article 158 (2) of the Constitution of India, learned counsel for the petitioner argued that as per Article 158(2), the Governor shall not hold any other office of profit. Whileso, having accepted an office of Chairman of Auroville Foundation entitling him for salary and other allowance, he suffers disqualification, therefore, he is not entitled to continue in the office of the Governor of Tamil Nadu anymore and he is liable to be removed from the office of the Governor of Tamil Nadu as he has incurred disqualification as per Article 158(2) read with Sections 11 and 12 of the Auroville Foundation Act, 1988.
8. Continuing further, learned counsel argued that once the Governorholds an office entitled for salary and other allowances, pension, gratuity, and surrender leave benefits, then it is an office of profit, which is barred by Article 158(2) of the Constitution of India. It is further argued that once he assumed the office of profit, he becomes disqualified automatically from holding the office of the Governor of Tamil Nadu, hence, he has no legal sanctity to continue as a Governor of Tamil Nadu, for, the third respondent has acted against the oath of office taken by him and it is a breach of oath. Therefore, he prays for issuance of a writ of quo warranto calling upon the third respondent to show cause under what authority of law he is holding the office of the Governor of Tamil Nadu.
9. At the outset, it would be apposite to take note of the protection granted to the President and the Governor by Article 361 of the

Constitution, which runs in verbatim thus:

“Protection of President and Governors and Raj

Pramukhs :–(1) The President or the Governor or Raj Pramukh 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.

• 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.
• 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.
• 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.”

A careful reading of Article 361 vividly depicts that a Governor shall not be answerable to any Court for exercise and performance of the powers and duties of his office or for any act done or purporting to be done in exercise and performance of those powers and duties. By virtue of Clause 2 of Article 361, no criminal proceeding can be instituted or continued in any Court during his term of office. Again, by virtue of Clause 3, no process for his arrest or imprisonment can be issued by any Court during his term of office. Besides, by virtue of Claus 4, no civil proceeding seeking any relief against the Governor with respect to any act done by him in his personal capacity, shall be instituted irrespective of the fact whether it was done before or after he assumed office, unless prior notice of two months is served on him in accordance with the procedure prescribed.

10. A Five Judge Constitution Bench of the Apex Court in

Rameshwar Prasad & others Vs. Union of India and another [2006 (2) SCC 1], while interpreting Article 361 of the Constitution of India held that the immunity granted under Article 361(1) includes a complete bar to the impleadment or issuance of notice to the President or Governor in his personal capacity as he is not answerable to any Court for the exercise and performance of the powers and duties of his officers or for any act done and purported to be done by him in the exercise and performance of those powers and duties.  For better appreciation, paragraph No.173 thereof is extracted below:-

173. A plain reading of the aforesaid Article shows 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 performance of their powers and duties. Most of the actions are taken on aid and advice of 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 malafides are required to be defended by Union of India or the State, as the case may be. Even in cases where the personal malafides 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 malafides 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 President or Governor for even filing of affidavit to assist the Court. Filing of an affidavit on one’s own volition is one thing than 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 malafides.”
174. In yet another judgment, a Constitution Bench of the Hon’ble

Apex Court in Nabam Rebia Vs. Gauhati High Court [2016 SCC Online SC 94], having issued a notice to the Governor of Arunachal Pradesh, recalled such notice by endorsing the complete immunity granted to the Governor under Article 361.

12. In PurnoAgitok Sangma Vs. Pranab Mukherjee [(2013) 2 SCC 239], the appointment of Shri Pranab Mukherjee was challenged on the ground that at the time of filing nomination papers as a candidate for the

Presidential election, Shri Pranab Mukherjee was holding the office of Chairman of the Council of Indian Statistical Institute, Calcutta, which was an office of profit. In the said case, the Hon’ble Apex Court ultimately held that since the holder of the post of Chairman of the Institute has been excluded from disqualification for contesting the Presidential election, by the 2006 Amendment to Section 3 of the Parliament (Prevention of Disqualification) Act, 1959, the submission of the petitioner therein that he was holding the office of profit is of no substance.  For better appreciation, relevant portion thereof is extracted below:-

“66. We are also not inclined to accept Mr. Jethmalani’s submissions that once a person is appointed as Chairman of the Indian Statistical Institute, Calcutta, the Rules and Bye-laws of the Society did not permit him to resign from the post and that he had to continue in the post against his wishes. There is no contractual obligation that once appointed, the Chairman would have to continue in such post for the full term of office. There is no such compulsion under the Rules and Bye-laws of the Society either. In any event, since the holder of the post of Chairman of the Institute has been excluded from disqualification for contesting the Presidential election, by the 2006 amendment to

Section 3 of the Parliament (Prevention of

Disqualification) Act, 1959, the submissions of Mr. Jethmalani in this regard are of little or no substance.”

Likewise, in the present case also, the office of Chairman of Auroville

Foundation has been excluded from operating as disqualification by Section 3(k) read with Entry 26 in the Table annexed to the Parliament (Prevention of Disqualification) Act, 1959.  Thus, this would not operate as a

disqualification.

13. Calcutta High Court had an occasion to answer a similar question in the case of Rama Prasad Sarkar Vs. Union of India and others [2022 SCC Online Cal 301]. It is alleged in the said case that the Governor is bypassing the State Council of Ministers and dictating directly to the State Officers and is tweeting almost every day.  A written complaint also has been given alleging that the Governor is required to be removed and that the Union of India may be directed not to use the Governor as political tool against the Government of West Bengal.  Calcutta High Court held that 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.  For better appreciation, paragraph No.7 thereof is extracted below:-

“7. Under Article 361 there is complete bar to issue notice to the Governor in any Court proceeding and make him answerable to the act done or purported to be done by him in performance of his power and duties. In view of the complete bar Governor cannot be made answerable to the Court in respect of even charge of malafides but there are certain limitations to such immunity which have been noted by the Supreme Court in judgment noted infra. Hon’ble Supreme Court in the matter of Rameshwar Prasad and others (VI) vs. Union of India and Another, (2006) 2 SCC 1 considering the scope of Article 361 of the Constitution has held that:

“173. A plain reading of the aforesaid article shows 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 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.  Articl e  36 1   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.“

14. In Dravida Munnetra Kazhagam and others vs. the Governor of Tamil Nadu and two others [1994-1-LW 145], our High Court, while

interpreting Article 361, has held that the said Article bars the filing of writ petition against the Governor and the President of India.

15. The Hon’ble Division Bench of Andhra Pradesh High Court in Gnanamani Vs. Governor of Andhra Pradesh [AIR 1954 Andhra 9], while dealing with the immunity granted to the Governor under Article 361, has categorically held that the immunity granted under Article 361 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. Going one step ahead, the Hon’ble Division Bench in the above said judgment held that, under the Constitution, the Governor is conferred with the Executive power by Article 154, Judicial power by Article 161 and Legislative power by Article 162; that does not mean that Article 361 contemplates only the powers which are conferred in the Constitution for the purpose of granting immunity to the Governor; in other words, if the Governor acts as such under any other statute in his capacity as Governor that will also be covered by Article 361.
16. Although the judgments of the Hon’ble Apex Court, Calcutta High Court, Andhra Pradesh High Court and our High Court have spoken clearly about the constitution and legal position of the Governor holding that he is not answerable to any Court, it is more important to take note of the very words of Dr.B.R.Ambedkar, Father of Indian Constitution, during the debate of Constitutional Assembly, which is reproduced hereunder:-

“The Constitutional Assembly debates shows that Mr. K.T. Shah had proposed an amendment that “the Governor shall hold office for a term of five years from the date on which he enters upon his office, and shall during that term be irremovable from his office.” He moved another amendment for addition of a clause that a Governor may be removed from office by reason of physical or mental incapacity duly certified, or if found guilty of bribery or corruption. 

Dr.B.R.Ambedkar replied thus:

“Sir, the position is this: this power of removal is given to the President in general terms. What Professor Shah wants is that certain grounds should be stated in the Constitution itself for the removal of the Governor. It seems to me that when you have given the general power, you also give the power to the President to remove a Governor for corruption, for bribery, for violation of the Constitution or for any other reason which the President no doubt feels is legitimate ground for the removal of the Governor. It seems, therefore, quite unnecessary to burden the Constitution with all these limitations stated in express terms when it is perfectly possible for the President to act upon the very same ground under the formula that the Governor shall hold office during his pleasure. I, therefore, think that it is unnecessary to categorize the conditions under which the President may undertake the removal of the Governor.”

A careful reading of the above debate would depict that there is no provision in the Constitution of India either to disqualify or to remove the Governor from the office by any court of law.  Besides, as highlighted above, a conjoint reading of the judgments of the Hon’ble Apex Court, Calcutta High Court, Andhra Pradesh High Court and our High Court would vividly depict that the personal immunity granted under Article 361(1) is complete, therefore, there is no question of Governor being answerable to any Court, hence, no writ or suit will lie against the Governor even on the charges of mala-fide.

17. At the risk of repetition, after going through the Article 361 of the

Constitution of India and judgments of the Hon’ble Apex Court and various High Courts as highlighted above, we are of the considered view that the legal position reiterated by the Hon’ble Apex Court and High Courts are equally applicable in the present case as well.

18. Therefore, for all the reasons highlighted above, we sustain the preliminary objection raised by the Registry as to the maintainability of the writ petition and accordingly reject the W.P.SR.No.133846 of 2022 as not maintainable.

(T.R.,A.C.J.)    (D.B.C.,J.)

05.01.2023

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THE HON’BLE ACTING CHIEF JUSTICE and D.BHARATHA CHAKRAVARTHY, J.

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W.P.SR.No.133846 of 2022

05.01.2023