The role of Governor has been the focal point of multiple federal debates in the last half-decade. It was only a few weeks ago that the Supreme Court had to intervene to umpire a constitutional duel between the Governor and the Council of Ministers in Madhya Pradesh.

However, it took less than two weeks for the country to witness the two institutions at loggerheads again. Except this time, the immediate quest is not for power, but the displacement of the Maharashtra Chief Minister.

With the Governor Bhagat Singh Koshyari pocketing the recommendation of the Maharashtra Cabinet to nominate incumbent Chief Minister Uddhav Thackeray to the Legislative Council, the “aid and advice” relationship shared between the two is now fraying at the seams.

The dispute between the Governor and the Cabinet in Maharashtra raises some questions of great constitutional import that should be re-litigated in both, academia and courts.

Expectantly, the matter is already pending adjudication after a petition was filed before the Bombay High Court seeking a direction to the Governor to decide the recommendation of the Cabinet to nominate Uddhav Thackeray to the Legislative Council. Oddly, the Governor is also a respondent party to the petition.

Quite obviously, the challenge brings to the fore the classic “aid and advice” debate embedded in Article 163(1) of the Constitution of India. But that is not the question I intend to discuss. Instead, this post shall review questions about the immunity from judicial proceedings given to the Governor under Article 361 of the Constitution.

The purpose behind reigniting the issue is to fix the Governor’s accountability given his/her growing prominence and influence in the functioning of a state. Here, I would hasten to add that the post does not intend to comment on the propriety or legality of the growing influence of the Governor in the state.

Article 361: A complete bar on fixing responsibility?

As stated earlier in the post, the Governor is a respondent in the challenge made before the Bombay High Court. Now, his impleadment becomes problematic, as under Article 361, the Governor is not liable to any court in respect of his powers and duties. In the face of this immunity , it is, therefore, only a matter of time before the maintainability of the petition comes under a heavy cloud.

Some might argue that the petition deserves to be dismissed in light of the Supreme Court's verdict in Rameshwar Prasad (VI).

In Rameshwar Prasad (VI), the interpretation of Article 361 fell for consideration before the Supreme Court. Taking a very liberal interpretation of the constitutional protection accorded to the Governor under Article 361 of the Constitution, the Court argued that the personal immunity enjoyed by the Governor extends to the exercise and performance of all or any powers and duties by him.

According to the Court, the immunity extends even to those cases where allegations of personal mala-fides have been made against the Governor. In doing so, the Court relied upon various judicial pronouncements explaining the meaning of the expression “purported to be done” to hold that under no circumstance and without exception can the Governor be called upon to account for his actions before a court of law.

In making these observations, the Court, however, added a small caveat. It said that the gubernatorial immunity does not imply that the actions of the Governor are beyond the pale of judicial review. The Court, therefore, ruled out any ouster of jurisdiction simply on account of immunity conferred on the Governor.

However, to facilitate counsel, the Court noted that the government supporting the actions of the Governor is allowed to defend him before the Court either by referring to the material on record or filing an affidavit. It is this portion of the ruling that merits some discussion and critique.

For this post, I'd call it the rule of 'alter-ego'.

It ought to be remembered that the Court in Rameshwar Prasad (VI) was seized with a question about the legality of imposing President's Rule under Article 356 of the Constitution. Under Article 356, when the President decides to invoke the emergency powers based on a report from the Governor, it automatically implies that report has the approval of the Central government.

Thus, where aspects of the federal relationship are expressly involved in the dispute, the application of the ‘alter-ego’ rule will not be difficult, because the very nature of the dispute would inevitably require the Centre to defend the actions of the Governor. In other words, a federal dispute involving the imposition of Emergency would never see the Governor being tried in-absentia.

However, the rule becomes difficult to apply when the impugned action of the Governor does not implicate any federal facets of the Constitution. A nomination to the Legislative Council under Article 171(3)(e) is a case in point. In nominating a person to the Upper House in the state under Article 171(5), the Governor is bound by the aid and advice of the Council of Ministers. A collective reading of Article 163(1) and Article 171(5) shows that the power of nomination is a field exclusively reserved to the Cabinet and the Governor has no choice but to accept it.

Further, the recommendations of the Cabinet are subject to minimum constitutional constraints as stipulated in sub-article (5) of Article 171. With the fields of expertise mentioned in the provision on nomination being only illustrative and not enumerated, there is very little or no scope for judicial review.

Therefore, in each case of nomination, the repository of power shall be the Cabinet and its wisdom shall be paramount. In this backdrop, the scope for gubernatorial intervention becomes severely diminished. Further, there is nothing, either in the Constitution or the laws, that can allow the Centre to thwart the recommendation. Put simply, the matter is within the exclusive domain of the State Cabinet.

Now, a situation can be conceived, as has happened in Thackeray’s nomination, where the Governor decides to stonewall the nomination by sitting on it. Naturally, the matter would have to be litigated before constitutional courts with the Cabinet and the Governor in a tug of war.

Whilst there would be no difficultly in making the government party to the proceedings, the Governor’s impleadment faces steep obstacles out of the gate as Article 361 guards the Raj Bhavan. This is because the “alter-ego” rule expounded in Rameshwar Prasad (VI) applies only when there is a government supporting the actions of the Governor. The dispute surrounding a nomination, however, has no government supporting the actions of the Governor.

Even the Central government would think twice before entering appearance on behalf of the Governor, as that would be frowned upon as trenching on federalism. The constitutional immunity fortifying the office of the Governor, as explained in Rameshwar Prasad (VI), therefore makes the situation very complex.

Perhaps, the opinion of the Court in Rameshwar Prasad (VI) was more influenced by the facts before it. By a reading of the judgment, it almost appears that the Court first drafted the conclusion before thinking about the reasons to support it. Worse, the Court did not even envisage the likelihood of a crisis where the Governor grows passive to a recommendation of nomination made by the State Cabinet.

Overall, the crisis in Maharashtra offers fertile grounds to revisit the immunity granted to the Governor. In revaluating the scope of immunity, the interpreter must bear in mind that constitutional functions should be performed with a great sense of responsibility and accountability. This becomes even more imperative in case of a Governor because he is neither responsible to the Legislature nor the Council of Ministers.

I am, therefore, of the opinion that the absolute immunity given to the Governor under Article 361 should be reviewed. For this purpose, the doctrine of “mala-fides” as an exception to immunity enunciated by the Calcutta High Court in Biman Chandra v. HC Mukherjee, Governor of West Bengal should be revived.

Doctrine of Mala-fides: An exception to Article 361

In Biman Chandra, the High Court was faced with a challenge to the nominations made by the Governor to the Legislative Council under Article 171(3)(e) of the Constitution. Since the Governor was impleaded as a party, the state raised a preliminary objection to the maintainability of the petition by invoking Article 361.

While holding that the nominations made by the Governor on the aid and advice of the Cabinet cannot be faulted, the Court ruled that the Governor enjoys protection from being made answerable before judicial forums in respect of his powers and duties, both actual and ostensible.

However, in explaining the concept of immunity, the Court formulated a narrow exception to it. The Court noted,

“If the act is ostensibly done in exercise of the power given under the Constitution and it is not established that the act is done dishonestly or in bad faith or in other words, out of any improper motive the immunity attaches to the exercise of the power.”

I argue that the doctrines of “mala-fides”, “bad-faith” and “improper motives” are consonant with the principle of interpretation that immunity provisions should be narrowly construed, as it constitutes an exception to the principle that no person is above the Constitution. Even though many would argue that the doctrine of mala-fides is buried under the weight of Rameshwar Prasad (VI), I believe that only a great deal of ingenuity will be able to wriggle out of the doctrine.

To supplement my submission, I would argue that the ratio in Rameshwar Prasad (VI) could be distinguished based on the factual dispute before the Court. There, the Court was concerned with a federal dispute where, as argued earlier, the Governor's action would be defended by the Centre.

Even otherwise, the judicial review of the imposition of the President's Rule can be done objectively based on the material placed before the Court. In such a scenario, personal impleadment of the Governor may not even be necessary.

In stark opposition to this, a tussle between the Cabinet and the Governor, on matters that fall within the ambit of typical executive functions peculiarly reserved to the State Cabinet and having no bearing on federalism, stands on a very different footing. Passivity in gubernatorial acts in respect of these actions, therefore, has the potential to bring the state machinery to a grinding halt.

If hibernating Governors were allowed to misconstrue immunity as impunity, Article 361 would become a sword instead of a shield.

Adjudicating Mala-fides

When Courts are faced with a case where allegations of mala-fide have been made against the Governor, maintainability of the petition should not be automatically presumed. In such cases, the Court should approach the issue with great caution and prima facie examine the nature and substance of the allegations made against the Governor. The examination would entail whether the actions of the Governor are done without any reasonable cause or purpose. As part of the examination, the Court would investigate if the act of the Governor was in conscious disregard of the settled position under law.

Generally, impleadment is not necessary when mala-fides in law are alleged. However, in case where the Governor is sitting on a nomination, it might be imperative for the Court, after prima facie satisfaction about the malice, to ask the Governor to file a response justifying the inaction. If this is not done, objective determination of the case is not possible without knowing the reasons that influenced the mind of the Governor.

In sum, the doctrine of “mala-fide” can be a helpful tool in resolving a constitutional wrangle, unrelated to federalism, between the Governor and the Council of Ministers. There can be multiple occasions, presently not foreseeable, where this exception can be invoked.

A note of caution is, however, in order. A vague and bald allegation of mala-fide should be highly discouraged when the sole purpose is the circumvention of the immunity under Article 361. To allow them would tantamount to rendering the constitutional immunity completely illusory.

Speaking today, no one can guess with certainty, the fate of Thackeray’s nomination and the associated litigation in the Bombay High Court. With Rameshwar Prasad (VI) holding the field, expediency and constitutional propriety demand the Governor to voluntarily abandon the privilege of immunity to participate in the proceedings before the High Court. The road to exception is a long and difficult journey that Maharashtra cannot afford right now.

The author is an Advocate practicing before the Supreme Court of India.