Governor’s obligations under the RTI Act, juxtaposed against judicial interpretation of Article 361 of the Indian Constitution

A member of the Union Public Service Commission and the Provincial Civil Service can only be removed on grounds of misbehaviour provided that the Supreme Court holds an inquiry after such misbehaviour is referred to the court by the President or the Governor. SHREYASI SINGH writes about similar obligations of the Governor under a pari materia provision in the RTI Act, related to the removal of Information Commissioners.

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IMMUNITY, as guaranteed to the Governor under Article 361 of the Constitution of India, has been debated for years. It has been contended in various cases that this immunity is not absolute and that actions of the Governor are subject to judicial scrutiny when challenged for arbitrariness, dishonesty, and bad faith. Furthermore, the ambiguity in the decisions of High Courts and the lack of clarity from the Supreme Court has made the applicability of judicial review over Governors' actions subject to variability based on the subject matter, nature of rights infringed, if any, and the particular facts of the case. 

Here, I will try to analyse the powers of the Governors of states to abdicate or restrain misdemeanour complaints against State Chief Information Commissioners. I will start by doing a comparative analysis of the provision for the removal and suspension of members of Public service commissions under Article 317(1) of the Constitution to that for removal of State Chief Information Commissioner under Section 17(1) of the Right To Information Act, 2005 (RTI Act).

This shall clarify the analogous nature of the provision and help to answer whether the governor can be made liable for non-abiding by the requirements under Section 17 of the Act or will the act fall within Article 361(1) of the constitution and to that extent provide governors with immunity thus not being subject to judicial scrutiny.  

Also read: Right to Information Act, 2005: An introduction to one of India's most significant transparency legislations

Analogous nature of Article 317(1) and section 17 of the RTI Act, 2005: 

Article 317(1) of the Constitution provides for the removal and suspension of members of a Public Service Commission and states that: 

Subject to the provisions of clause (3), the Chairman or any other member of a Public Service Commission shall only be removed from his office by order of the President on the ground of misbehaviour after the Supreme Court, on reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf under Article 145, reported that the Chairman or such other member, as the case may be, ought on any such ground to be removed.

The case of The Matter Of Reference Under … vs. Unknown (1983) was the first time reference was made to the procedure to be followed while removing a member of the Public Service Commission under Article 317(1). The Supreme Court clarified that the power of the President to make a reference under Article 317(1) is not subject to the condition precedent and that members of a Public Service Commission can only be removed from their office on the ground of misbehaviour after the Supreme Court, on a reference made to it by the President, reports that the Chairman or such other person ought to be removed on any such ground. However, it did not comment on the failure of the President or Governor to report such misbehaviour to the Supreme Court. 

Section 17(1) of the RTI Act provides for the removal of a State Chief Information Commissioner or a State Information Commissioner and states:

Subject to the provisions of sub-section (3), the State Chief Information Commissioner or any State Information Commissioner shall be removed from his office only by order of the Governor on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the Governor, has on inquiry, reported that the State Chief Information Commissioner or a State Information Commissioner, as the case may be, ought on such ground be removed.

Clearly, Article 317(1) is in pari materia with Section 17(1) of the RTI Act and envisages that the Supreme Court is the exclusive and absolute authority to inquire into complaints of misbehaviour and incapacity against the Chairman or members of the Union Public Service Commission (UPSC), the Provincial Civil Service (PCS), and the Chief Information Commissioner or Information Commissioner, and report to the President or Governor for necessary action. 

 During the Constitutional Assembly debates on Articles 285 and 317, Dr. Mono Mohan Das asked: "If the Supreme Court, as being referred by the President, reports that Chairman or some other member of the Public Service Commission should be removed, then will it be obligatory on the part of the President to remove him?" 

Pertinently, in both the scenarios, the Governor/President is obligated to make the reference of such misbehavious or incapacity to the Supreme Court without any comment on the obligation placed on them. 

Immunity under Article 361(1) of the constitution:

The important question then is, if an instance comes up, where the Governor is obligated to make the reference of such misbehaviour or incapacity to the Supreme Court, whether their failure will fall within the ambit of Article 361(1) and make them immune from liability and the scrutiny of the court under Article 361 of the Constitution? 

For the scope of this piece, I shall be dealing with various precedents and provisions concerning the immunity of the Governor under Article 361. This draws attention to the oft-debated question on the Supreme Court's powers to judicially review the discretion of the Governor.

 Analysis of Article 361(1) with reference to Article 317(1) 

Article 361 provides for the Protection of the President, Governors, and Rajpramukhs. It states in clause 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.

It is important to note the distinction between the powers and duties under the Constitution of the office of the Governor and the powers and duties of the office under the Constitution. Now, the "powers and duties of the office" embrace the powers of the Governor expressly conferred by the Constitution as well as those conferred by any law or statutory rules. For example, Article 316 which gives the Governor the power to appoint members of the State Public Service Commission is expressly conferred by the Constitution. But there are powers and duties besides these which are not expressly provided by any article of the Constitution but result from the working of several articles in the Constitution. 

On the same lines, in M. Gnanamani vs. His Excellency, the Governor of Andhra (1954), Chief Justice K. Subba Rao of the Andhra Pradesh High Court observed that there are three categories of acts that the Governor performs. There is absolute immunity for the first category of acts, which are constitutionally authorised acts of the governor. Acts falling within the other two categories enjoy only limited protection. 

 For instance, the Governor's power to make an ordinance under Article 213 is a legislative function, and not administrative, and therefore, not left to his discretion. The same had been held by the Madras High Court in K.A. Mathialagan & Ors. vs. the Governor of Tamil Nadu and Ors. (1972). 

Similarly, the Andhra Pradesh High Court, in Dr. G. Valayya Pantulu vs. Government of Andhra (1957), and the Patna High Court, in Bankim Chandra vs. State of Bihar (1956), held that since the Governor was working in his official capacity in the exercise and performance of the powers and duties of his office, it was not open to the High Court to issue a writ under Article 226  so far as the Governor of a state was concerned. The courts did not, however, intend for this narrowly interpreted meaning of mala fide, to extend absolute immunity to the Governor. Importantly, in K. A. Mathialagan, the Madras High Court noted that the rulings of the Patna and Andhra Pradesh High Courts were not relevant in the given circumstances as the Governor was not a party to either case.  

Thus, as reiterated by the Kerala High Court in D.B. Binu vs. Governor of Kerala (2015), while the Governor has been given protection under Article 361 for maintaining the prestige and dignity of her office, the immunity could not affect the right of any person to bring appropriate proceedings against the government of the state for challenging the acts of the Governor that, when performed, would have the effect of abridging the right of a person under Article 226 of the Constitution.

Also read: Highest Judicial Office Under RTI Purview: An examination of the Positives and Creative Tensions in the Constitution Bench's Opinion 

 Provision for judicial scrutiny for Governor's accountability

 In Rameshwar Prasad vs. Union of India (2006), the Supreme Court liberally interpreted the constitutional protection accorded to the Governor under Article 361 and held that the personal immunity enjoyed by the Governor extends to the exercise and performance of all or any powers and duties performed by him. 

Similarly, in G.D. Karkare v. T.L. Shevde (1950), a division bench of the Madhya Pradesh High Court had taken the view that the immunity afforded by Article 361 was personal to the Governor, but it did not place the actions of the Governor, done or purporting to be done in pursuance of his powers and duties under the Constitution, beyond the scrutiny of the Courts. 

Notably, the corollary to Article 361(1) itself provides that "nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Governor of India or the Government of a State."  Incidentally, it may be stated here that the proviso pointedly shows that while the object of Article 361 is to give personal immunity to the Governor, it at the same time reserves the right of any person to bring appropriate proceedings against the Government for action taken by the Governor. 

Justice R.K. Rao, in G.D. Karkare, noted:

"[T]he immunity afforded by Article 361 is personal to the Governor and it doesn't place the actions of the Governor required to be done in pursuance of the Constitution beyond the scrutiny of the Courts. It is the Constitution that establishes the supremacy of law and not of men, however, high-placed they might be."

Thus, to conclude, it can be said that the immunity under Article 361(1), as described in K.A. Mathialagan, would not be applicable in cases involving Section 17(1) of the RTI Act, since even though it is not a legislative function of the Governor, she is mandated to perform certain functions under the Act. Any failure of the Governor to perform her duties under this provision is subject to judicial review by the Court, and any mala fide intent or willful negligence would result in liability being placed on such officer, as provided for under Article 361(1).

(Shreyasi Singh is a B.A., LL.B. (Hons.) student at Dr. Ram Manohar Lohiya National Law University, Lucknow. The views expressed are personal.)