Holding that under the Constitutional precincts the head of the State Executive i.e. the Governor is entitled to absolute immunity from legal actions for his executive functions, the Kerala High Court in a recently reported decision [D.B. Binu v. Governor, AIR 2011 Ker 5] set aside the contention of an advocate to bring about an action against the Governor alleging role in appointment of members of the Right to Information Commission.
The High Court referred to earlier decisions and in particular Article 361 of the Constitution of India which extends immunity to President (i.e. the Union Executive Head) and the Governor (i.e. the State Executive Head) for actions undertaken by them in exercise of the executive power. The High Court inter alia observed as under;
6. As is clear from paragraph 4.11.36, the Sarkaria Commission noted that the powers and duties conferred on the Governor by a Statute fall in two distinct categories, namely those conferred on the Governor in his capacity as Governor and the other conferred on the Governor in his capacity not as Governor but in a different capacity such as that of Chancellor of a University under the relevant University Acts. The Sarkaria Commission categorically held that those powers conferred on the Governor to be performed by him in his capacity as Governor pertains to the office of the Governor as provided for under Article 154(1) and has to be exercised by him on ministerial advice in accordance with Article 163(1). The Commission further stated that by virtue of Article 361(1) of the Constitution of India, the Governor enjoys personal immunity in a Court for exercise by him of such functions. I am bound by the decision in Gopalakrishnan's case (supra), wherein the Division Bench categorically accepted the view of the Sarkaria Commission. I also note that the Division Bench has categorically approved the decision of the Madhya Pradesh High Court in S. C. Barat 's case (supra) therein. In paras. 5 and 6 of that decision, the Division Bench of the Madhya Pradesh High Court has held thus:
Taking Clause (1) first, it in plain terms gives complete immunity to the Governor in respect of the exercise and performance of the powers and duties of this office and for any act done or purporting to be done by him in the exercise and performance of those powers and duties. The immunity is not restricted during his term of the office but continues even after the Governor ceases to hold the office. It is thus personal. The extent of the immunity is to be found in the scope of the expression "the exercise and performance of the powers and duties of his office". On the very words of this expression, it is clear that the immunity is in respect of the exercise and performance of the powers and duties of the office of the Governor under the Constitution and for acts done thereunder and not merely in respect of the powers and duties under the Constitution of the office.
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. There are several articles in the consequent conferring certain powers on the Governor. To name some, Article 161 dealing with the power of the Governor to grant pardons, reprieves etc., Article 164 under which the Chief Minister is appointed by the Governor, Article 165 giving to the Governor the power to appoint the Advocate General, Article 166(3) giving to the Governor the power to make rules for the more convenient transaction of the business of the Government of the State, Article 192 empowering the Governor to decide questions as to disqualifications of members of the Legislature, Article 200 dealing with the Governor's assent to a bill passed by the Legislature, Article 213 concerning the power of the Governor to promulgate Ordinances, Article 309 giving to the Governor the power to make rules regulating the recruitment and conditions of service of persons serving the State, Article 316 which gives the Governor the power to appoint members of the State Public Service Commission. There are all powers expressly conferred by the Constitution. But besides these powers and duties of the office, there are some powers and duties of the. office which though not expressly provided by any article of the Constitution, result from the working of several articles in the Constitution.
(6) Under Article 154 the executive power of the State is vested in the Governor and is exercised by him either directly or through the officers subordinate to him according to the Constitution. Article 162 lays down that the executive power of the State shall extend to the matters with respect to which Legislature of the State has power to make laws. Under Article 166(1) all executive action of the Government has to be expressed to be taken in the name of the Governor. The Constitution confers powers on the State Legislature to make laws with respect to any of the matters enumerated in Lists II and III in the Seventh Schedule. The State Legislature is not prevented from conferring by law any functions on the Governor. The effect of all these provisions is that certain powers, duties and functions may be conferred on the Governor qua Governor under any Act or rules made thereunder.
The powers and duties conferred by such Acts and rules on the Governor qua Governor are "the powers and duties of his office". They are not conferred in so many words by any article of the Constitution, but they flow from the working of several articles of the Constitution. Such powers and duties when conferred on the Governor qua Governor are also exercised by him on the advice of the Council of Ministers except in so far as he is by or under the Constitution required to exercise his functions in his discretion. The action taken by the Governor is the executive action of the Government which is expressed in the name of the Governor. The protection given by Clause (1) of Article 361 covers the exercise and performance of the powers and duties conferred on the Governor qua Governor by any law or rules made under any law. That the personal immunity extends not only to the exercise of his functions by the Governor in his discretion but also to the exercise of his functions on the advice of the Council of Ministers becomes further clear by the second proviso to Article 361.
7. This decision also lays down the view that the immunity under Article 361(1) of the Constitution of India is attracted to statutory functions exercised by the Governor in his capacity as Governor. In view of the fact that the said view has been accepted by the Division Bench of this Court, the same becomes the law as laid down by the Division Bench of this Court also.
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