SUBRAMANIAN SWAMY Vs. DECIDING AUTHORITY

JUDGEMENT

(1.) The petitioner is the Chairman of the Tamizhaga Nallatchi Iyakkam. He is also a former Union Cabinet Minister for Commerce, Law and Justice. He is a well-known figure in politics. He has filed this writ petition for the issue of a writ of mandamus to direct the first respondent to grant necessary sanction for prosecuting the second respondent under the provisions of Section 19 of the Prevention of Corruption Act, 1988, in compliance with his request made on 2-11-1993. The first respondent is described as "the Deciding Authority and his Excellency the Governor of Tamil Nadu, Mardas." The second respondent is the Hon'ble Chief Minister of Tamil Nadu and the third respondent is the State of Tamil Nadu represented by the Chief Secretary to Government. When the writ petition came up for admission on 29-4-1994, I entertained a doubt regarding its maintainability. Therefore, I ordered notice of motion returnable by 14-6-1994. All the respondents are now represented by counsel and counter-affidavits have been filed by the second and third respondents. All of them raised the plea that the writ petition as framed is not maintainable against the first respondent. Since this question has been raised as a preliminary issue based on a Division Beach judgment of this Court in Dravida Munnetra Kazhagam, The etc. v. The Governor of Tamil Nadu 1994 (1) Mad Law Weekly, 145, I asked the petitioner as to how he can get over the said binding authority.

(2.) The petitioner argues that he has not committed the mistake of impleading the Governor and thus incurring wrath of Article 361 of the Constitution of India and on the other hand he has only impleaded the Deciding Authority under Section 19(2) of the Prevention of Corruption Act, 1988. He relied on the judgment of Naga People's Movement for Human Rights v. Union of India, AIR 1990 Gauhati 1 and S. C. Barat v. Hari Vinayak, AIR 1962 Madhya Pradesh 73. He also buttresses his argument by comparing the power of the Authority under Section 19(2) of the Prevention of Corruption Act, 1988 with the power of the Speaker under the Tenth Schedule to the Constitution of India. He refers to Shri Kihoto Hollohan v. Shri Zachillhu, 1992 (1) JT (SC) 600 : (AIR 1993 SC 412) for the proposition that judicial review is possible in the case of the power of the Speaker while acting on a petition for disqualification and argues that consequently the power of the Deciding Authority under Section 19(2) of the Prevention of Corruption Act, 1988 is also justiciable. According to him the Governor while acting as Deciding Authority exercises his discretion under Article 163 of the Constitution of India. In other words he is not acting on the aid and advise of the Council of Ministers. He adds that the charges referred to by him in his petition dated 2-11-1993 are not frivolous and the Deciding Authority cannot sit over the matter for such a long time without passing orders one way or the other. He also refers to the recent trend of the law, as laid down by the Supreme Court in the writ petitions relating to the dismissal of certain Governments based on Ayodhya disputes. The Supreme Court has pointed out that in a fit and proper case it will be possible for the Court to examine the correctness of the exercise of the power of the President of India while invoking the Article 356(1) of the Constitution of India. He has referred to a letter addressed by the first respondent to the Hon'ble the Prime Minister of India on 18-3-1994 which amply establishes the seriousness of the charges contained in his petition dated 2-11-1993.

(3.) After giving my careful consideration to the rival submissions I have absolutely no doubt in my mind that the judgment of this Court in Dravida Munnetra Kazhagam, etc. v. The Governor of Tamil Nadu (1994) 1 Mad LW 145 is squarely applicable to the facts of the present case. In the said judgment the Division Bench was concerned with an order of the Governor rejecting the request for sanction to prosecute the Chief Minister under Section 197 Criminal Procedure Code and the Section 19 of Prevention of Corruption Act, 1988. The only difference in this case is that the Governor has not passed any orders on the complaint made by the petitioner on 2-11-1993. As rightly pointed out by Shri K. Parasaran, whether the Governor has passed an order or has not passed any orders, the ratio is the same, namely, the Governor cannot be called into question, on his silence over the matter. It is open to the Governor to exercise his power and perform his duties in any particular manner. Article 361(1) of the Constitution of India says that he "shall not be answerable to any court for the exercise and performance of the powers and duties of his officer or for any act done purporting to be done by him in the exercise and performance of those powers and duties." I have already indicated that the distinction sought to be raised by the petitioner by referring to the Governor as the Deciding Authority is not based on any legal foundation. As rightly pointed out by the respondents there is no such an authority as the Deciding Authority in the Prevention of Corruption Act. The Division Bench has elaborately considered all the relevant authorities on the subject and has given a clear and cogent verdict on the issue. In my opinion, it will be a judicial waste of time to go though the exercise once over again. The verdict of the Division Bench is as follows :-