So Section 19 of the Prevention of Corruption Act requires sanction from the sup erior authority for the prosecution

of any person charged with an offence under certain sections of the act. my question is, in case the sanction required is of the president, one which has been denied, can the Court issue an order directing the president to sanction s uch a prosecution, incase there are chances of bias and overwhelming evidence re garding the charge? No, denial of permission for prosecution by the President cannot be challenged i n a court of law. However, the ingredients going into the decision of not permit ting prosecution are open for judicial scrutiny. he judiciary may not substitute the subjective satisfaction of the President, be cause the judiciary does not sit as appellate authority over the subjective sati sfaction of the authority and the judiciary will not step in the shoe of the adm inistrative authorities. The administrative decision making process can be challenged in the court only i f the authority is not applied its mind to the facts and circumstances of the ca se, or that there is a breach of statutory provision, or that the principles of natural justice are violated, or when the authority has come to a conclusion whi ch no man exercising reasonable prudence could have come to such a conclusion, o r that the administrative decision is otherwise unjust,m unfair, unreasonable, a rbitrary and unsustainable in law. For the prosecution of public servants for offences which are fundamentally crim inal in nature, a grant of sanction under Section 197 of the Code of Criminal Pr ocedure is necessary. This grant of sanction has been accorded to Judges, Magist rates, and Public servants, so that they can be prevented from frivolous prosecu tion and in cases where the prosecution of these persons is not in public intere st . Section 197 of Cr.P.C, uses the expression State Government , the Supreme Court in some cases have considered it to be the Council of Ministers and that even in ca ses in which the Statutes use the expression Governor , by way of process of inter pretation the Apex Court has held the expression to be interpreted as the State G overnment. In the case of State of Madhya Pradesh v. Dr Yashwant Trimbak ( 19) -The power to sanction is nothing but an executive action of the Government. This is not a matter with respect to which the Governor is required under the Constit ution to act in his discretion Also, in the case of State of Uttar Pradesh v. Pradhan Sang Kshetra Samiti it wa s held that even though Article 243(g) of the Constitution uses the word Governor , it was interpreted to be the State Government. The provision in Article 163 lays down that in the case if the Governor there sh all be a Council of Ministers to aid and advice him. These are the provisions fo r the discharge of executive powers and functions of the Government in the name of the Governor, with the Governor being a mere Constitutional Head. The Halsubry s laws of England (4th Ed. Vol. Where functions entrusted to a Minister are the Minister's Department there is in law no the act or decision of the official is that erely the machinery for the discharge of the I 748 at p. 170) performed by an official employed in delegation because constitutionally of the, Minister. The official is m functions entrusted to a Minister

It is very necessary to mention the relevant Articles in order to determine whet

her the Governor would have discretion in such matters. Article 154(1) provides that the Executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officer s sub-ordinate to him in ac cordance to the Constitution. Article 163-- Council of Ministers to aid and advice Governor. (1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far a s 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 discr etion, the decision of the Governor in his discretion shall be final, and the va lidity of anything done by the Governor shall not be called in question on the g round that he ought or ought not to have acted in his discretion. (3) . Article 166-- Conduct of business of the Government of a State. (1) All executive action of the Government of a State shall be expressed to be ta ken in the name of the Governor (2) . (3) The Governor shall make rules for the more convenient transaction of the bus iness of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Gove rnor is by or under this Constitution required to act in his discretion. The Constitution of India envisages a Parliamentary or Cabinet system of Governm ent, adopted from the British model. Under the Cabinet system of Government the Governor is the Constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the ai d and advice of his Council of Ministers. Wherever the Constitution requires the satisfaction of the Governor for the exer cise of any power vested upon him by the mandate of the Constitution, the satisf action required by the Constitution is not to be construed as the personal satis faction of the Governor but is the satisfaction of the Governor in the constitut ional sense under the Cabinet system of Government. This essentially implies tha t it is the satisfaction of the Council of Ministers as conveyed to the Governor , on the basis of which the Governor acts. The legal position has been unambiguo usly expostulated in this regard by the apex Court in P. Joseph John v. State of Travancore-Cochin. It is an elementary principle of democratic Government prevailing in England and adopted in our Constitution that the Rajpramukh or the Governor as head of the S tate is in such matters merely a constitutional head and is bound to accept the advice of his Ministers The intention of the founding fathers of the Constitution unerringly points to t he binding quality of Council advice upon the exercise of gubernatorial powers. Dr. B.R. Ambedkar observed in the Constituent Assembly that the Governor is requi red to follow the advice of his ministry in all matters therefore the satisfactio n of the executive is not his personal satisfaction, but satisfaction in the cons titutional sense under the Cabinet system of Government . The position and power of the Governor vis--vis the Council of Ministers has alwa ys been an area of dispute in determining the extent of the discretion of the Go vernor. This question has been dealt extensively in the landmark case of Shamshe r Singh v. State of Punjab . The Supreme Court has taken the view that the power s of the Governor and the powers of the Crown in are similar as under the Britis h Parliamentary system . In Shamsher Singh ( 32)

The power of the sovereign is conditioned by the practical rule that the Crown mu st find advisers to bear responsibility for his action. Those advisers must have the confidence of the House of Commons. This rule of English constitutional law is incorporated in our Constitution .The Indian Constitution envisages a parlia mentary and responsible form of Government at the Centre and in the States and n ot a Presidential form of Government. The powers of the Governor as the Constitu tional head are not different. The Supreme Court in the case of U.N. Rao v. Indira Gandhi held that the positio n of the President and that of the Governor are just titular in nature and that the real power is actually exercised by the Council of Ministers. Also, in Shams her Singh it was held that whenever the Constitution requires the satisfaction o f the President or the Governor for the exercise by the President or the Governo r of any power or function the satisfaction required by the Constitution is not personal satisfaction of President or the Governor. The satisfaction of Presiden t or the Governor in the Constitutional sense in the Cabinet system of Governmen t, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor exercises all his powers and functions. Also in the case of Rai Sahib Ramjawaya v. State of Punjab it was held that: Our Constitution though federal in structure is modeled on the British Parliament ary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law through the condition precedent to exercise of this responsibility is its retaining the con fidence of the Legislative branch of the state . The Constitution does not aim at providing a parallel Government within the Stat e by allowing the Governor to go against the advice of the Council of Ministers, therefore neither the President, nor the Governor is to exercise executive func tions at their own discretion. Hence we can conclude that the Government of the country is controlled by a Mini stry and Cabinet chosen by the electorate which while remaining responsible to t he electorate is responsible directly to the legislature, in other words, the Ex ecutive branch of the Government is responsible to the Legislature for the foreg oing reasons. This is as such a Constitutional convention wherein the rules of political practi ce are regarded as binding by those to whom they apply. The Court opined that the Tribunal concerned in this case had come to a wrong co nclusion that the sanction required under the relevant rule is the sanction of t he Governor. In the case of Shamsher Singh v. State of Punjab Justice K. Iyer pu t forth a very fundamental question regarding the bare basics of the Constitutio n; he posed the question (at 92) that Does our legal political system approximates to the Westminster style Cabinet Gov ernment or contemplate the President and the Governor, unlike the British Crown being real repositories of actually exercising power in its comprehensive Consti tutional significance? He observed in the judgment that the President and the Governor are replica of C onstitutional monarch and a Cabinet answerable to the Parliament substantially e mbodying the conventions of the British Constitution-not a turn-key project impo rted from Britain, but an edifice made in India with the knowhow of British Cons titutionalism. The Government is carried on by the Ministers according to the ru les of allocation of business and the Governor not more than the Queen, merely n eed know or approve orders issued in his name. The core of the Westminster System is that the Queen reigns, but the Ministers r ule. If the inner voice of the founding fathers may be any guide it is proved bey ond reasonable doubt that the President and, a fortiori, the Governor enjoy noth ing more and nothing less than the status of constitutional head in a cabinet ty

pe Government . Dr. Ambedkar s comprehensive statement introducing the draft Constitution on Novem ber 4th 1948, regarding the structure of the Indian polity is:-Under the Draft Constitution the President occupies the same position as the King under the English Constitution The President of the Indian Union has no power t o do so long as his Ministers command a majority in Parliament . The expression required found in Article 163(1) is stated to signify that the Gove rnor can exercise his discretionary powers only if there is a compelling necessi ty to do so . The necessity to exercise such powers may arise from the express p rovision of the Constitution or by necessary implication. The Sakaria commission report further adds that such necessity may arise even from the rule and order made under the Constitution. Baring few exceptions, wherever the Constitution requ ires the satisfaction of the President and the Governor, it is not their persona l satisfaction, but the satisfaction of the Council of Ministers on whose aid an d advice, the President or the Governor has to exercise their powers and functio ns. Neither of them can exercise the usual Executive function individually or pe rsonally In Sanjeevi Naidu v. State of Madras it was held that-The Governor is essentially a constitutional head and the Government is run by th e Council of Ministers. All the matters in which in which the Governor is specif ically required to act in his discretion have to be decided by Council of Minist ers . In U.N. Rao v. Indira Gandhi Justice Sikri speaking for a unanimous Court, after reiterating that we are interpreting a Constitution and not an act of Parliament , A Constitution which establishes a Parliamentary system of Government with a cabi net thought it was proper to keep in mind the conventions at the time the consti tution was framed. For a Centrally appointed Constitutional functionary to keep a dossier on his Ministers or to report against them or to take up public stance s critical of Government policy settled by the cabinet or to interfere in the ad ministration directly-these are unconstitutional faux pas and run counter to par liamentary system. In all his constitutional functions it is the Ministers who a ct; only in the narrow area specifically marked out for discretionary exercise b y the Constitution, he is untrammelled by the State Ministers acts and advice. O f course, a limited free-wheeling is available regarding choice of Chief Ministe r and dismissal of the Ministry, as in the English practice adapted to Indian co nditions . As held by Ray. C. J in Sardari Lal v Union, Article 74(1), provides that there shall be a Council of Ministers to aid and advice the President in the exercise of his functions and Article 163(1) meets the same provisions mutatis, mutandis, for the Governors. If the correct conclusion to draw from Articles 74(1) and 163 (1) is that the President and the Governors are not obliged to accept and act ac cording to that advice, if would follow that in the discharge of their functions , the President and the Governors have a discretion to disregard the advice of t he Council of Ministers . But such a conclusion is inconsistent with the express conferment of discretionary power of the Governor under Article 163(2), for, if Governors have a discretion in all matters under Article 163(1), it would be unn ecessary to confer on Governor an express power to act their own discretion in a few specified matters. The conferment of specified discretionary powers by Arti cle 163(2) negatives the view that the President and the Governor have a general discretionary power to act against the advice of the Council of Ministers . It is undeniable that the sanction for prosecution of public servant including a minister is the executive function of the State Government . The Governor is no t required to exercise this function in his discretion by or under the Constitutio n. There is not specific Article in the Constitution which requires the Governor

to act in his discretion in the exercise of the Executive function. It is well se ttled that unless a particular Article expressly so provides, an obligation of t he Governor to act in his discretion cannot be inferred by implication, as held by the Hon ble Supreme Court in Ram Jawaya v. State of Punjab , and Sanjeevi Naidu v. State of Madras. The area in which the Governor has to act in this discretion is ear-marked , in va rious Articles and if the question arises whether the Governor should exercise t his discretionary power in that area, then his decision in that respect attains finality under Article 163(2). It is not that he can arrogate to himself any exe cutive function of the State and then claim his decision to be final. That appro ach would be contrary to the legal position as settled by Supreme Court in Shams her Singh. Therefore Article 163(1) does not enable the Governor to grant sancti on for the prosecution in his discretion. Further, Article 163(2) does not attac h finality to the decision of the Governor in such matter. It is outside the pre view of Article 163(1) as it is not expressly spelt out in any provision of the Co nstitution . It is also not covered by any exception situations as indicated in paragraph 153 in the Shamsher Singh Judgement. It can therefore be concluded tha t in absence of any source of power emanating from specific provision in the Con stitution, or any Constitution conventions, it is not possible for the Courts to concede to the Governor the power to sanction the prosecution of a Minister. In U.P.P.S.C. v. Suresh Chandra , the Supreme Court following the Shamsher Singh has held that the Governor is bound by the Council of Ministers in matters of a ll executive importance. These discretionary powers exist only when they are expressly spelt out, and eve n these are left to the full discretion of the Governor, but are remote controll ed by the Union Ministry which are answerable to the Parliament for those action s . In all the constitutional functions of the Governor it is the ministers who act. II.A Difference between Constitutional and Statutory discretion. Under Article 163(1) of the Constitution the Governor has been given discretion only in relation to his function under the Constitution, he is required to exerc ise in his discretion. The grant of sanction under 197 of Cr.P.C is statutory fu nction of the State Government and cannot be said to be discretionary function o f the Governor under the constitution . This is not a matter in respect to which the Governor is required under the Constitution to act in his discretion and he has to act on the advice of the Council of Ministers. Therefore, the general rule must prevail and the Governor must act in the sphere as per advice of the Council of Minister and not contrary to it. If this power is conceded to the Governor it would open the flood gates for the exercise of th e discretionary power of by the Governor in all cases where the decision of the Council of Ministers is considered inept or inappropriate by the Governor. That would amount conferring the power of review on the Governor in respect of the de cisions taken by the Council of Ministers which is answerable to the Legislative Assembly and the people. That would be against the spirit of the Constitution w hich has established the Cabinet form of the Government in State also. That woul d bring diarchy as indicated in the case of Shamsher Singh. The interpretation of a provision of the Constitution would not differ or deflec t simply because of the possibility of abuse of power by the Council of Minister s in a given case. The Constitution has reposed greater faith in the Council of Ministers answerable to the people and it is expected that it would consider eve n the question of grant of sanction for prosecution of its Minister in a detache d and dispassionate manner upholding the rule of law and cause of justice . Ther e is a presumption that the decisions of the Council of Ministers have been arri ved at rightly and regularly and not to shield the guilty. Hence, the Governor i

f at all has discretion would be under the Constitution, and not under any Statu te. Therefore the petitioners would like draw the attention of this Hon ble Court to t he difference between the Constitutional discretion and statutory discretion, an d here in the instant case the question is in relevance to the discretion of the Governor in relation to Cr.P.C, therefore, the Governor should not have any dis cretionary power in this matter. http://lawmirror.com/search.php?passed=&searchterm=sanction+for+prosecution+of+p ublic+servant&wordlayout=all&field%5Bheadnote%5D=headnote&page=1&field%5Barticle %5D=article&field%5Bsection%5D=section&field%5Border%5D=order&court=0 http://en.wikisource.org/wiki/Constitution_of_India/Part_XIV