This article is written by Vishwendra Prashant. It provides a detailed analysis of the Supreme Court’s judgement pronounced in M.P. Special Police Establishment vs. State of M.P. (2004). It deals with the extraordinary circumstances in which the governors may exercise their discretionary powers (under Article 163 of the Indian Constitution) in granting the sanctions to prosecute the ministers. Moreover, the article discusses the facts, issues raised, arguments, and various legal provisions involved in the case.

This article has been published by Shashwat Kaushik.

Introduction

As far as the Union Executive is concerned, the Constitution of India, 1950 establishes a parliamentary form of government. This type of government involves a constitutional head as the head of the State, with actual executive powers being held by the Council of Ministers. The head of the Council of Ministers is the Prime Minister. The Lok Sabha holds the Council of Ministers accountable. As per Article 52, there must be a President of India. Article 53 states that the President of India (the Head of the State) exercises the executive power of the Union directly or through subordinate officers as per the Constitution. Moreover, Article 73 says that the Union’s executive power covers subjects over which Parliament can legislate and the implementation of rights, authority, and jurisdiction that the government of India can exercise through any treaty or agreement.

Download Now

As far as the state executive is concerned, the pattern of the state government is identical to that of the Union, i.e., a parliamentary system. Articles 153-167 and 213 of the Constitution deal with the state executive.

However, the state executive comprises of the chief ministers, the Council of Ministers, and the governors. The governors perform all the executive actions under the guidance of the Council of Ministers. Moreover, the governors appoint the chief ministers and the Council of Ministers.

The powers of the governors are similar to those of the President. These are as follows:

  1. Executive power [Articles 154 & 162];
  • The Constitution does not define the term “executive power”.
  • In the legal sense, it involves the authority to oversee administration and supervise various operations within the country.
  • However, Article 154 states that the governors hold the executive power of the states and can exercise it either directly or through subordinate officers.
  • The executive power of the states encompasses subjects over which the state legislatures have authority to enact laws.
  1. Financial power [Articles 207(1) & 203(3)];
  • Financial power means a legal authority that the President and the governors hold to make and formulate financial decisions.
  • Article 207(1) says that the Legislative Assemblies of the states can not introduce money bills without the governors’ recommendations.
  • The provisions that must be adhered to in the legislature regarding estimates are specified in Article 203. The financial proposals made by the government for the next financial year are reflected in the estimates. These estimates encompass revenue and expenditure forecasts, and the distribution of funds for various sectors and projects.
  • The power of the Legislative Assemblies in the event of the States proposing additional expenditure is explained in this Article. Any extra spending proposed by the States must be presented as “demands for grants” and then put to votes in the Legislative Assemblies.
  • Article 203(3) says that these grants cannot be demanded without the governors’ recommendations.
  1. Legislative power [Articles 174(1), 174(2), 200, & 171];
  • Article 174(1) states that the governors have the authority to convene the Houses or each House of the State Legislatures at the times and places of their choice. However, there must not be a gap of more than six months between the last sitting of one session and the first sitting of the next session. 
  • Article 174(2) states that the governors are empowered to adjourn the Houses or either House and dissolve the Legislative Assembly.
  • They are entitled to address the state legislatures. No Bills can be enacted into laws without the governors’ assent. The governors are also empowered to reserve certain bills for the approval of the President. (Article 200)
  • Additionally, they appoint 1/6th of the members of the Legislative Councils (Article 171).
  1. Pardoning power [Articles 161 & 162]; and
  • As per Article 161, the governors are authorised to pardon, delay or reduce punishment for individuals convicted of offences under any laws related to matters for which the executive powers of the States extend.
  • Moreover, Article 162 says that such powers cover matters that fall within the power of the state legislatures to legislate.
  1. Ordinance-making power [Article 213]
  • The governor’s authority to make ordinances under Article 213 mirrors that of the President under Article 123. An ordinance can be issued by the governor only under two circumstances:
  1. When the Legislative Assembly of a state is not in session, or when both Houses in a State are not in session.
  2. When immediate action is necessitated by circumstances. The validity of the ordinance issued by the governor cannot be questioned by the Court on the grounds of necessity or sufficient justification for its issuance. The existence of such a necessity is not subject to judicial review. The exercise of ordinance-making power is not discretionary, as the governor acts on the advice of the Cabinet.

Details of the case

Case Name: M.P. Special Police Establishment vs. State of Madhya Pradesh & Ors.

Case No.: Appeal (Civil) No. 7256-7257 of 2004.

Case Type: Civil case

Name of the Court: Supreme Court of India

Name of the Parties:-

  • Petitioner/Appellant: M.P. Special Police Establishment
  • Respondent: State of M.P.

Citation: (2004) 8 SCC 788.

Date of Judgment: 5th November 2004.

Bench: Justices N. Santosh Hegde, S.N. Variava, B.P. Sinha, H.K. Sema and S.B. Sinha.

Background of the case

This case was regarding the civil appeals filed by the appellants against the judgements of the Division Bench and the Single Judge of the M.P. High Court. 

In this case, the two Ministers of the M.P. Government were charged with offences under the Prevention of Corruption Act, 1983 (hereinafter referred to as PCA, 1983), and the Indian Penal Code, 1860 (hereinafter referred to as IPC, 1860). However, Article 163 of the Constitution states that the governors have to act under the guidance of the Council of Ministers. The governors may also act at their discretion as per the requirement. This case questions granting the sanction to the governor for prosecuting the said Ministers.

Facts of M.P. Special Police Establishment vs. State of M.P. (2004)

  • The M.P. Government had Rajendra Kumar Singh and Bisahu Ram Yadav serving as Ministers.
  • The Lokayukta registered a complaint against them. This complaint was related to wrongful possession of 7.5 acres of land by previous owners. However, the Indore Development Authority had purchased that land.
  • The Lokayukta presented a report after the investigation. The Ministers resigned before the submission of the report. However, the report contended that there were adequate grounds to prosecute them under Section 13(1)(d) read with Section 13(2) of the PCA, 1983, and also for the offence of criminal conspiracy under Section 120B, IPC.
  • A sanction was imposed before the Council of Ministers to prosecute the Ministers (accused). The Council of Ministers held that there was no evidence against them to show they were involved in a criminal conspiracy. Moreover, the Council of Ministers rejected the sanction, declaring that there was no prima facie case against the accused.
  • After that, the governor contemplated a grant of sanction following the Council of Ministers’ decision.
  • The governor submitted that there was ample evidence to prove the prima facie case against the Ministers.
  • The governor granted the sanction to prosecute under Section 197 of the Code of Criminal Procedure, 1973 (CrPC).
  • The accused filed separate writ petitions (i.e., Special Leave Petitions; SLP (C) Nos. 7697-7698 of 2003) under Articles 226 and 227 of the Constitution to challenge the governor’s order.
  • A single judge bench of the M.P. High Court held that the governor is not empowered to grant sanction for prosecuting the accused “in his discretion” as per Article 163. Moreover, the governor is not permitted to act against the “aid and advice” of the Council of Ministers.
  • This Court also ruled that the Rule against Bias does not apply to the entire Council of Ministers. Moreover, the doctrine of necessity does not justify the governor’s discretionary actions in such a situation.
  • The Madhya Pradesh Special Police Establishments (appellants) filed two Letters Patent Appeals before the Division Bench of the M.P. High Court. These appeals were filed to challenge the single judge’s decision. However, the remedies of Letters Patent Appeals are available to aggrieved parties who are dissatisfied with the courts’ decisions, permitting new trials in cases of factual or legal mistakes.
  • The Division Bench dismissed the appeals supporting the Single Judge’s decision.
  • The appellants filed the appeals before the Supreme Court.

Issues raised

  1. Whether a governor can act at his discretion while granting the sanction to prosecute the accused for the offences under PCA, 1983 and IPC, even if it goes against the advice of the Council of Ministers?
  2. Whether the governor’s order sanctioning the prosecution can be enforced?
  3. Whether the accused can be prosecuted under the above-mentioned laws?
  4. Whether a prima facie case was established?
  5. Whether the report presented by the Lokayukta was maintainable?
  6. Whether the writ petitions filed by the accused were maintainable?
  7. Whether the decisions of the Single Judge and the Division Bench were correct?
  8. Whether the Appeals filed by the appellants were maintainable?

Arguments of the parties

Petitioner

The counsel (Mr. Sorabjee) representing the petitioner contended that generally, the governors act under the guidance of the Council of Ministers but there may be certain circumstances where the governors, based on the Constitution, may need to act at their discretion. However, the Constitution renders some provisions under which they must act at their discretion. Articles 239(2), 371A(1)(b), 371A(2)(b), 371A(2)(f) and Clauses 9(2) and 18(3) of the Sixth Schedule are the provisions under which the governors may act at their discretion.

Mr. Sorabjee also contended that the Indian Constitution explicitly states that the governors may act at their discretion in exceptional circumstances. Does this mean they can only do so when the Constitution explicitly mentions it? Article 163(2) would be pointless if this were the situation. The issue of whether governors may act at their discretion only arises when the Constitution does not explicitly acknowledge it. In situations where the Constitution explicitly states that they can act at their discretion, this question does not arise. Therefore, Article 163(2) mandates that a governor must exercise discretion in certain matters, even if the Indian Constitution does not explicitly state so.

Mr. Sobarjee referred to Samsher Singh vs. State of Punjab (1974). A seven Judges panel of the Supreme Court held:

“The standard practice for the governors is to follow the guidance of the Council of Ministers and not act on their authority or against it. However, these are specific circumstances where the governors may act at their discretion:

  1. Where governors are appointed as the administrators for the Union Territories, they shall perform their duties as administrators separately from their Council of Ministers [Article 239(2)].
  2. Clauses 9(2) and 18(3) of the Sixth Schedule;
  3. Articles 371A(1)(b), 371A(1)(d), 371A(2)(b) and 371A(2)(f);
  4. If situations arise in which the state governments can not continue as per the provisions of the Indian Constitution, the governors may send reports to the President regarding the same [Article 356].
  5. During making reports under Article 356, the governors will have to exercise their discretion, even if it goes against the advice of their Council of Ministers. It would be valid because the Constitutional Machinery may fail due to the actions of the Council of Ministers.
  6. Bills are sent to the governors for their approval. They have the power to approve or set the Bills aside for the President’s review. In this regard, they have to act at their discretion only [Article 200].” 

These exceptions are not exhaustive. Moreover, the concept of the governors acting at their discretion is not unfamiliar to the Constitution. However, Article 163(2) says that their decisions will be conclusive at their discretion and cannot be contested in court.

Mr. Sorabjee also referred to the State of Maharashtra vs. Ramdas Shrinivas Nayak & Anr. (1982). In this case, the Bombay High Court ruled that while prosecuting the chief ministers, the governors would determine whether they should grant sanctions under Section 6 of the PCA, 1947. However, they must act at their discretion without the guidance of the Council of Ministers.

In Bhuri Nath and Others vs. State of Jammu & Kashmir and Others (1997), the Supreme Court stated that governors’ decisions would be based on their own satisfaction without the guidance of the Council of Ministers.

Respondent

The counsel (Mr. Tankha) representing the respondents argued that the chief minister’s case differs from the Ministers’ case. He further argued that the Council of Ministers had contemplated all the evidence. So, they concluded that there was no evidence to grant the sanction.

The governor had no authority to act as an appellate body and reverse the decision of the Council of Ministers. Such a decision can only be questioned in court.

Mr. Tankha contended that the rule against bias does not apply to the facts of this case. He supported his contention by relying on V.C. Shukla vs. State (Delhi Administration) (1980). In this case, the rule against bias could not be applied.

Mr. Tankha also relied on State of Punjab vs. V.K. Khanna (2001). In this case, the new chief minister of Punjab withdrew the sanction of prosecution against two senior IAS officers. Such a withdrawal of the sanction was challenged in the Supreme Court. The Court held that such withdrawal can not lead to the existence of bias or miscarriage of justice. There must be compelling evidence to prove the same.

Mr. Tankha also relied on Kumaon Mandal Vikas Nigam Ltd. vs. Girja Shankar Pant (2001). In this case, the Supreme Court gave the same decision as in the A.K. Kraipak case.

Mr. Tankha utilised the doctrine of necessity to show that the Council of Ministers has to decide such cases of necessity. However, the rule against bias has an exception that permits judges to decide cases even if they are biased or prejudiced in their actions.

Laws and concepts discussed in M.P. Special Police Establishment vs. State of M.P. (2004)

Constitution of India

Article 163 of the Constitution

According to Article 163(1), there shall be a Council of Ministers with a chief minister as the Head to guide the governor in performing his duties. According to Article 163(2), the governor has the discretion to act on certain matters even if the Indian Constitution has not explicitly stated so. Moreover, Article 163(3) states that any inquiries into the advice given by the Council of Ministers to the governor are prohibited in any court.

Article 226 of the Constitution

It is given in Part V of the Indian Constitution. It empowers the High Courts to issue writs for enforcing fundamental rights. Such writs can be granted to any person or any government.

These are the writs that can be issued under this Article:

  1. Writ of Habeas Corpus: 
  • It is a Latin term that means “you may have the body”.
  • It is given as a directive. 
  • Its object is to provide quick relief to detainees illegally held by others.
  • Any individual, such as friends or relatives, can request it for detainees.
  1. Writ of Mandamus:
  • The word ”mandamus” means “the order”.
  • The high courts have the authority to grant these writs where governments or public authorities have failed to exercise or wrongly exercised their public or statutory duties.
  1. Writ of Prohibition:
  • The word “prohibition” means “to stop”.
  • It is issued to prevent lower courts or administrative bodies from overstepping their authority or acting unfairly.
  • It is issued in situations of overstepping authority as well as a lack of authority.
  1. Writ of Quo Warranto:
  • The term ‘quo warranto’ means ‘what is your authority’.
  • By this writ, officeholders would demonstrate to the court, grounds on which they hold the position.
  • The purpose of this writ is to stop individuals from holding offices for which they don’t have legal entitlements.
  1. Writ of Certiorari:
  • It is a Latin phrase that means ‘to be informed’.
  • It is issued by superior courts (high courts and Supreme Court) before the trial to prevent excessive use of jurisdiction and transfer the cases for trial to higher courts.
  • It is also issued after a trial to quash an order made without jurisdiction or violating the rules of natural justice.

Article 227 of the Constitution

This Article empowers every high court to oversee all courts and tribunals within its jurisdictional territory. Such power conferred on the High Court is extensive, encompassing administrative and judicial oversight.

Prevention of Corruption Act, 1983

Section 13(1)(d) of Prevention of Corruption Act

It states that public servants are considered to have committed criminal misconduct if they:

  1. Obtain any valuable things or financial advantages for themselves or others through corrupt or illegal means; or
  2. obtain any valuable things or financial advantages for themselves or others by misusing their position as public servants; or
  3. obtain any valuable things or financial advantages for any person without any public interest while holding offices as public servants.

Section 13(2) of Prevention of Corruption Act

It states that public servants found guilty of criminal misconduct would face imprisonment ranging from one year to seven years, along with a fine.

Code of Criminal Procedure, 1973

Section 197 of CrPC

Judges and public servants may get immunity under Section 197 of the CrPC while exercising their official duties. However, all the persons listed under Section 21 of the IPC are protected under Section 197 of the CrPC. This Section provides immunity to persons who act in good faith, not those who act mala fide.

However, Section 197 provides that individuals such as judges, magistrates, or public servants cannot be removed from their positions without the approval of the competent government authority. Moreover, if they have committed any offences while performing their official duties, no court can address the matter without prior approval. 

Indian Penal Code, 1860

Section 120B of IPC

It provides the punishment for criminal conspiracy. This Section divides conspiracy into two categories based on the nature, gravity, and punishment of this offence.

  1. Section 120B(1) states that if the conspiracy is for committing a serious offence (i.e., offence whose punishment is death, life imprisonment, or rigorous imprisonment for at least 2 years or more, or the Code does not mention punishment for the offence committed), such person shall be treated as if he committed the offence himself.
  2. Section 120B(2) states that if the conspiracy is for committing an offence other than that mentioned under Section 120B(1), such person will face a maximum imprisonment of six months, a fine, or both.

Doctrine of necessity

It is an exception to the rule against bias. This principle allows the Judge to decide the case even though he would act biassed or prejudiced. The main reason behind this principle is that if no other person can make a decision, let the biassed person decide the case rather than no decision made at all. However, it does not mean that the Doctrine of Necessity can be used to decide every case. It can be used in case of absolute necessity.

In Tata Cellular v. the Union of India (1994), the Indian government invited all mobile operators to establish their networks in Chennai, Bombay, Calcutta, and Delhi. The Evaluation Committee was responsible for reviewing and assessing the tenders under the Telecom Regulatory Authority of India (TRAI), which included a Director General of Telecommunication. Following the evaluation process, the tender submitted by the Director General’s son was chosen. The Supreme Court, however, did not approve the violation of ‘Nemo judex in causa sua’ because without the Director General of Communication, no tender could be selected, and fair evaluation could not be conducted. Since there was no alternative course of action, the decision was deemed immune from being nullified. The doctrine of necessity was applied liberally by the Supreme Court in this instance.

Moreover, in Election Commission of India v. Dr. Subramaniam Swamy (1996), the Supreme Court held that if there is a potential for bias in the Chief Election Commission, their involvement is not required and the doctrine of necessity does not apply. They were advised to convene a meeting and then excuse themselves from it, allowing the remaining commission members to proceed with the decision-making process. The doctrine of necessity is applicable when there is a disagreement among the members. Thus, in this instance, the said doctrine was interpreted as the doctrine of absolute necessity, indicating that it can only be invoked in situations of absolute necessity.

Judgement in M.P. Special Police Establishment vs. State of M.P. (2004)

The Supreme Court observed that the conclusion becomes unavoidable if the facts and circumstances indicate bias. However, Mr. Tankha’s assertion that the governor would not oversee the decisions of the Council of Ministers was incorrect. The governors will not act at their discretion unless the Council of Ministers is unable to function or disqualifies itself. A Council of Ministers may not decide unprejudiced when its chief minister or other members are facing prosecution. 

After observing the facts and circumstances of the case, the five Judges’ Constitutional Bench of the Hon’ble Court held that the governors can grant sanctions to prosecute the Ministers for offences under the PCA and the IPC. He can do so under his discretionary power. Moreover, Article 163(2) states that there can be certain circumstances where the governors can act at their discretion, even though the Indian Constitution has not explicitly stated so. 

The Lokayukta made a detailed inquiry into a complaint and found a prima facie case against the Ministers. Given that a former judge held the office of Lokayukta, it’s unlikely that this authority would issue a report without any basis. 

The Supreme Court was fully satisfied with the report, leading to the dismissal of the Writ Petitions of the Ministers. The Council of Ministers’ decision to reject the sanction was unreasonable as it disregarded relevant facts. As a result, this court reversed the judgement of the single judge and the division bench of the High Court. 

Consequently, the Supreme Court directed that the governor’s Order granting prosecution sanction should be enforced. Hence, the Ministers were liable under the PCA, 1983, and the IPC. The Court allowed the appeals filed by the appellants due to the existence of a prima facie case against the Ministers. Moreover, the Court remanded the case for trial.

Relevant judgements referred in the case

Following were the cases referred by the Supreme Court to reach the present Judgement:

The Supreme Court relied on the judgement of A.K. Kraipak vs. Union of India, 1969 (2) SCC 262, in which this Court ruled that, as far as bias is concerned, mere suspicion of bias is insufficient. There must be a fair possibility of bias. However, this Court considered the question of bias.

In Kirti Deshmankar vs. Union of India, 1991 (1) SCC 104, the Supreme Court determined that the governors generally act under the guidance of the Council of Ministers for granting sanctions for prosecution. They cannot act at their discretion. However, some exceptions may arise while granting sanctions of prosecution to chief ministers or Ministers. As a matter of propriety, the governors may have to act at their discretion. Moreover, if the Council of Ministers disables or disentitles itself, the governors would act at their discretion.

Moreover, this Court also considered Mr. Sobarjee’s reliance on the case of Ramdas Shrinivas Nayak. In this case, a Member of the Legislative Assembly (MLA) lodged a complaint against the then chief minister of Maharashtra at the Court of Metropolitan Magistrate, 28th Court, Esplanade, Bombay. The complaint accused the chief minister of committing offences punishable under Sections 161 and 185 of the IPC and Section 5 of the PCA, 1947.

The Metropolitan Magistrate declined to consider the complaint without the necessary approval of the government under Section 6 of the PCA, 1947. In response to the Metropolitan Magistrate’s decision, R.S. Nayak submitted a Criminal Revision Application to the High Court of Bombay, naming the State of Maharashtra and Shri Antulay 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.

Rationale behind the judgement

The rationale behind the judgement was to prevent the violation of the rule of law. The Supreme Court said that if the governor can not act at his discretion based on these facts and circumstances, the Rule of Law would be violated. Moreover, the governments would reject sanctions openly, regardless of very strong evidence that proves the prima facie case. Democracy would be in danger due to such rejections. 

Such rejections of sanctions will create a scenario in which the people in power might violate the law, knowing that they are immune from prosecution.

However, according to the Supreme Court, the doctrine of necessity does not apply to the current situation. The Court said that the Council of Ministers must consider the sanction without any doubt. The Council of Ministers would normally act in good faith and as per the law. If the Council of Ministers’ decision is unjust and biassed, the governors are justified in acting at their discretion based on the facts of the case. He is also right if he grants sanctions.

Analysis of M.P. Special Police Establishment vs. State of M.P. (2004)

The Supreme Court has tried its best to prevent the Council of Ministers and other Ministers from acting mala fide and arbitrarily to the law.

The Council of Ministers ignored the important facts while rejecting the sanction granted by the governor. Such rejection of the sanction was biassed and completely against the law because there were enormous materials to prove the liability of the Ministers. In this situation, the governor is authorised to act at his discretion under Article 163(1), considering the facts and circumstances of the case.

As far as the Madhya Pradesh High Court is concerned, it did not consider the facts and circumstances of the case. Moreover, the consequences of rejecting the sanction were not considered by this Court.

However, the Supreme Court has explained some exceptions where the governors can exercise their discretionary power without the guidance of the Council of Ministers.

Conclusion

This case law concludes that the governors are empowered to act at their discretion in some special circumstances, as discussed in this article. But it does not mean that they do not need to seek aid and advice from the Council of Ministers. Normally, they need to act under the guidance of the Council of Ministers. The facts and circumstances of the case determine whether the governors can exercise the discretionary power under Article 163 of the Indian Constitution.

Frequently Asked Questions (FAQs)

Who is the Council of Ministers under the Constitution of India?

The Council of Ministers is the supreme executive organ of the government. It aids and advises the President [under Article 74(1)] and the governors [under Article 163(1)] in exercising their functions. 

What is the relationship between the governors and the Council of Ministers?

Generally, the relationship between the governors and their Ministers mirrors that of the President and his Ministers. The key distinction is that the Indian Constitution does not authorize the President to exercise any discretion in performing functions at his discretion, whereas it allows the governors some discretionary powers.

However, Article 163 provides that the governors have to act under the guidance of the Council of Ministers. They are allowed to use their discretion in some exceptional situations.

Which protection has been given to the governors?

Under Article 361, the governors have the same protection as the President of India. However, in State of Gujarat vs. Mr. Justice R.A. Mehta, AIR 2013 SC 693, the Supreme Court, interpreting Articles 154 and 361, held that-

“Article 361(1) grants governors full immunity, preventing their actions from being contested due to their adherence to the guidance of the Council of Ministers. Consequently, their acts can not undergo judicial review. If it is not so, democracy itself would be in danger. Moreover, the governors are not accountable to either of the following:

  1. House of State,
  2. Parliament, and
  3. Council of Ministers.

What do you mean by the term “Lokayukta”?

The term “Lokayukta” originates from the combination of two Sanskrit terms: “Loka” (means people) and “Ayukta” (means appointee). It is an anti-corruption authority that investigates corruption and malpractice complaints made by the general public. Such complaints can be against public servants, including government officials. However, the state government appoints Lokayukta.

What is the rule against bias?

This is the principle of natural justice. According to this doctrine/rule, a judge must be free from any pecuniary interest or personal interest in a particular case. Moreover, his decision must not be biassed and prejudiced.

References

RELATED ARTICLESMORE FROM AUTHOR

LEAVE A REPLY

Please enter your comment!
Please enter your name here