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CASE COMMENTARY ON
M.P. Special Police Establishment v State of M.P., 2003 CriLJ 4610V
For Internal Assessment of B.A.LL.B.(Hons.) course
CONSTITUTIONAL LAW -II

Submitted by
KHUSHBOO
Reg. No. BA0220028

Submitted to
Anand Kumar
Assistant Professor of Law

TAMIL NADU NATIONAL LAW UNIVERSITY

(A State University Established by Act No. 9 of 2012)
Tiruchirappalli, Tamil Nadu -620009
India
MARCH 2024
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INTRODUCTION

This case dealt with the interpretation of Article 163 of the Indian Constitution which provides the
exercise of the governor's power with the help of aid and advice of the councils of the ministers.
The governor is the nominal head of the executive power in the state and the real power is exercised
by the council of ministers headed by the prime minister.
It is usual practice that the governor has to abide by the advice rendered by the councils of
ministers, he has no final say but the council of ministers has.
The aid and advice rendered by the council of ministers to the governor can not be subjected to
judicial scrutiny.
The question arises whether the governor shall be bound by the advice given by the council of
ministers with mala-fide intention or misuse of the power or biased manner.
If yes then the constitutional principles like democracy, representative and responsible
government, separation of power rule of law will be in danger.
If no, the governor should be allowed to act as par his discretion in certain situations when the
facts and circumstances are such that the aid- advice of the council of minsiter if taken into
consideration will visiated the whole purpose of the law.

FACTS OF THE CASE

The Lokayukta received a complaint from the M.P. Special Police Establishment about the illegal
transfer of 7.5 acres of land to its prior owners, despite the Indore Development Authority's
acquisition. Madhya Pradesh ministers, Bisahu Ram Yadav and Rajender Kumar Singh were the
respondents in the appeal.
After the investigation, the Lokayukta recommended a criminal proceeding of the two ministers
for criminal conspiracy under Section 120-B of the Indian Penal Code and Section 13(1)(d) read
with Section 13(2) of the Prevention of Corruption Act, 1983. Both ministers resigned before the
report was submitted.
The Council of Ministers denied sanction because there was insufficient evidence to prosecute.
Section 197 of the Criminal Procedure Code authorized prosecution by the Governor.
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Based on the available materials, the Governor believed there was enough evidence for prosecution
but the Governor is supposed to exercise its power to sanction punishment with the aid and advice
of the Council of Ministers, but here he did not comply with the advice of the Council of Ministers.
The two ministers filed Writ Petitions challenging the Governor's ruling under Indian Constitution
Articles 226 and 227.
A High Court single judge ruled that the Governor cannot sanction ministers' prosecutions "in his
discretion" under Article 163 of the Indian Constitution. The court found that the governor couldn't
oppose the council of ministers’ "aid and advice".
It was also decided that the whole Council of Ministers could not be biased and that the Governor
could not use necessity in light of the case facts.
The Division Bench denied the patent appeal letters, confirming the Single Judge's reasons.
The five judges bench in the Supreme Court heard the appeal in this case considering the
importance of the issue.

ISSUE

1. Whether the Governor exercise his discretion under Article 163, without aid- advice of the
Council of Ministers, to sanction the prosecution of ministers for breaches of the Prevention of
Corruption Act and/or the Indian penal code?

ARGUMENT OF PETITIONER

Although the Governor typically accepts the Council of Ministers' advice and recommendations,
Mr. Sorabjee maintains that the Constitution requires the Governor to act at his discretion.
The Indian Constitution states that the Governor can use his discretion. Articles 239(2),
371A(1)(b), 371A(2)(b), and 371A(2)(f) and Sixth Schedule paragraphs 9(2) and 18(3) are
included. It would be a mistake to think that the Governor of India can only utilize his discretion
in areas where the Indian Constitution allows it. If so, Article 163's Subclause (2) is unnecessary.
so only becomes a matter of whether the Governor must utilize discretion when the Constitution
does not explicitly give so. If the Constitution plainly provides that the Governor has discretion, a
disagreement cannot arise. The Governor may use his judgment in some instances under Article
163(2), even if the Constitution does not explicitly grant it.
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ARGUMENT OF RESPODANT

Mr. Tankha, representing the Ministers, argued that the Chief Minister's case would be different.
He said the Council of Ministers had studied all the data and used their thoughts and concluded
that there was not enough material to grant sanction. He said that the Governor could not appeal
the Council of Ministers' decision since he was not an Appellate Body. He argued that the Council
of Ministers' decision could only be contested in court.

JUDGEMENT

The Supreme Court held that without appropriate evidence, it may be impossible to determine that
the Council of Ministers behaved deliberately. Malice must be charged against an individual, not
a collective. Even in this case, the parties must include the factual malice charges.
The court dealt with the issue of the Governor's approval and the Council of Ministers' rejection.
The governor believed in the materials disclosing their complexity, but the Council of Ministers
refused to grant sanction because there was no evidence that Respondent No. 4 in each appeal had
committed conspiracy. An F.I.R. was filed for the offense on March 31, 1998.
After receiving a complaint, the Madhya Pradesh Lokayukta investigated the matter thoroughly.
The investigation covered the statute, the case's background, the purportedly statutory orders dated
August 11, 1995, February 24, 1997, and March 5, 1997, the covert nature of the investigation, the
files' notes, and the accused's willful and intentional attempts to ignore the facts. In his report, the
Lokayukta cites considerable evidence.
Given these facts and circumstances, if the Governor is not allowed to act on its own, the rule of
law would be undermined since governments might refuse to punish even with strong proof.
Democracy will be in danger if high-level officials are denied or delayed justice after a prima facie
case. Since they wouldn't be punished, powerful people could breach the law without being caught.
That bias usually shows up subtly. Sometimes, members might not even be aware of how much
their view is affected from this point of view, the supreme court held that a challenge to single and
division bench decisions can be allowed and the five-judge bench can declare the appealed decision
null and void.
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The Writ Petitions of the two Ministers were dismissed. The Order of the Governor to sanction
punishment to the minister was upheld and in such a way council of the minister’s aid and advice
was set aside.

ANALYSIS

A simple interpretation of sub-clause (2) of Article 163 holds that the Governor's decision on
whether to use his discretion or not is final and his decision can not be called into question in a
court of law for using his discretion.
Even though final, the governor's decision can be reviewed by the courts. The governor's actions
are still questioned.
As BR Ambedkar stated in the constituent assembly preserving or entrusting the Governor with
discretionary powers does not negate responsible government.
Article 166(1) shows that the Governor is the state's official agent for all executive functions.
A symbolic leader who must accept the Council Minister’s advice.
The Governor may set aside the advice of the Council of Ministers, but this is rare. When the
Council of Ministers' recommendations violate fundamental rights, when an obvious bias or
conflict of interest occurs, or when the law requires the Governor to use his judgment.
So in light of the facts of this case, the Governor was right in not considering the aid- advice
rendered by the council of ministers to not sanction the punishment to ministers who allegedly
committed crimes even though there were prima facie case was established and later relevant
evidence was also provided against the ministers, so the Governor can use his discretionary power
to decide about sanctioning the punishment to ministers ignoring the advice of the ministers which
if taken can invalidate the decision for being biased in favor of ministers and might put the rule of
law and democracy in the hands of the person who are not competent enough to take responsibility.
The Supreme Court correctly interpreted the constitutional provision to preserve the sanctity of the
rule of law.
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CONCLUSION

In conclusion, based on the facts and circumstances, the governor can exercise his discretion which
can be opposed to the aid advice of the council of ministers provided under Article 163.
The Council of Ministers can not be assumed to be free from bias and there may be a possibility
of a substantial amount of reasonable bias from their side in some cases, in such scenario the
governor need not base his decision on their advice which can be detrimental for the rule of law
and democracy.