BINU D B Vs. GOVERNOR

JUDGEMENT

(1.) This unnumbered W.P.(C) has been placed before the Court for adjudication of the sustainability of a defect noted by the Registry since the petitioner maintains that there is no defect.

(2.) The Writ Petition is filed by the petitioner challenging the validity of the appointment of the 6th respondent as a member of the State Information Commission under Section 15(3) of the Right to Information Act. In the Writ Petition, the petitioner has impleaded the Governor of the State of Kerala as the first respondent, for the reason that the Governor is the appointing authority for appointing the members of the State Information Commission. The Registry raised an objection that by virtue of Article 361 of the Constitution of India, the Governor is not answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done purporting to be done by him in the exercise and performance of those powers and duties and therefore he cannot be impleaded as a respondent in this Writ Petition, since his action as the Governor is under challenge in the Writ Petition. The counsel for the petitioner maintained that under Section 15(3) of the Right to Information Act, the appointing authority of the members of the State Information Commission is the Governor and the exercise of that power under the Act is under challenge in the Writ Petition. Therefore he is a necessary party, since without the Governor in the party array the order cannot be successfully challenged is his contention. He further submitted that the exercise of any power of the Governor under the Constitution of India is not in question and as such Article 361 is not attracted. Therefore he maintained that there is no defect. It is because of the said stand of the counsel for the petitioner in respect of the defect so noted, with which stand the Registry did not agree, that the Registry has placed the matter before the Court for adjudication of this defect.

(3.) The contention of the petitioner is that the protection and immunity under Article 361 of the Constitution of India is available only in respect of exercise of duties and functions of the Governor as provided under the Constitution of India and not in respect of any statutary functions exercised by the Governor as per statutes framed by the Legislature of the State and the Parliament. According to him, the members of the State Information Commission are appointed by the Governor on the recommendation of a committee consisting of the Chief Minister, who shall be the Chairperson of the Committee, the Leader of Opposition in the Legislative Assembly and a Cabinet Minister to be nominated by the Chief Minister and not by the Council of Ministers. Such an action is not referable to Article 163 of the Constitution of India and therefore is outside the purview of the protection and immunity granted by Article 361 of the Constitution of India is his contention. He heavily relies on a decision of a Division Bench of this Court in Gopalakrishnan v. Chancellor, University of Kerala,1990 1 KerLT 681 in support of his contention, in which, according to the petitioner, the proposition has been laid down that in respect of statutory functions exercised by the Governor, the immunity under Article 361 of the Constitution of India is not available. The counsel for the petitioner takes me through paragraphs 18, 25, 26, 28, 29, 34, 35 and 36 of the said decision, He also refers me to paragraph 10 of the decision of the Division Bench of the Madhya Pradesh High Court in S.C. Barat v. Harinayak, 1962 AIR(MP) 73 which has been quoted with approval by the Division Bench in Gopalakrishnan's case (supra).