Judgment : J. Chelameswar, C.J. Pursuant to the order dated 14.10.2010, the learned Advocate General appeared. Heard the learned counsel for the appellant and the learned Advocate General. 2. The appeal herein is filed aggrieved by an order dated 17.10.2010 of a learned Judge of this Court in an unnumbered writ petition of 2010. The writ petition itself came to be filed challenging the validity of the appointment of the 6th respondent as one of the State information Commissioners under Section 15 of the Right to Information Act, 2005. In the said writ petition, the writ petitioner impleaded the Governor of Kerala as a party respondent (respondent No.1) to the writ petition along with other respondents on the ground that under Section 15 of the Act the Governor of the State is the appointing authority for the State Chief Information Commissioner and also the State Information Commissioners. 3. The Registry of this Court raised an objection regarding the maintainability of the writ petition against the Governor. Since the writ petitioner insisted that the Governor is a necessary party to the writ petition, having regard to the cause of action upon which the writ petition is filed and also the relief that is sought in the writ petition, the registry listed the matter before a learned Single Judge of this Court with the objection indicated above. 4. By the order under appeal, the learned Judge upheld the objection raised by the Registry with a direction to the Registry to return the writ petition for re-submission after curing the defect, hence the appeal. 5. Section 15. Constitution of State Information Commission.-(1) Every State Government shall, by notification in the Official Gazette, constitute a body to be known as the ….. (name of the State) Information Commission to exercise the powers conferred on, and to perform the functions assigned to, it under this Act. (2) the State Information Commission shall consist of- (a) The State Chief Information Commission, and (b) such number of State Information Commissioners, not exceeding ten, as may be deemed necessary. (3) The State Chief Information Commissioner and the State Information Commissioners shall be appointed by the Governor on the recommendation of a committee consisting of. (i) the Chief Minister, who shall be the Chairperson of the Committee; (ii) the Leader of Opposition in the Legislative Assembly; and (iii) a Cabinet Minister to be nominated by the Chief Minister. (3) The State Chief Information Commissioner and the State Information Commissioners shall be appointed by the Governor on the recommendation of a committee consisting of. (i) the Chief Minister, who shall be the Chairperson of the Committee; (ii) the Leader of Opposition in the Legislative Assembly; and (iii) a Cabinet Minister to be nominated by the Chief Minister. Explanation.- For the purposes of removal of doubts, it is hereby declare that where the Leader of Opposition in the Legislative Assembly has not been recognized as such, the Leader of the single largest group in opposition of the Government in the Legislative Assembly shall be deemed to be in the Leader of the Opposition. (4) the general superintendence, direction and management of the affairs of the State Information Commission shall vest in the State Chief Information Commissioner who shall be assisted by the State Information Commissioners and may exercise all such powers and do all such acts and things which may be exercised or done by the State Information Commission autonomously without being subjected to directions by any other authority under this Act. (5) The State Chief Information Commissioner and the State Information Commissioners shall be persons a eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. (6) The State Chief Information Commissioner and the State Information Commissioners shall not be a member of Parliament or Member of the legislature of any State of Union territory, as the case may be, or hold any other office of profit or connected with any political party or carrying on any business or pursuing any profession. (7) The headquarters of the State Information Commission shall be at such place in the State as the State Government may, by notification in the Official Gazette, specify and the State information Commission may, with the previous approval of the State Government, establish offices at other places in the State. of the Act contemplates the constitution of a body known as the “State Information Commission”, a defined expression under Section 2(k) of the Right to Information Act. Sub-section (2) of Section 15 stipulates that such a body shall consist of the State Chief Information Commissioner and such number of State Information Commissioners (not exceeding ten). of the Act contemplates the constitution of a body known as the “State Information Commission”, a defined expression under Section 2(k) of the Right to Information Act. Sub-section (2) of Section 15 stipulates that such a body shall consist of the State Chief Information Commissioner and such number of State Information Commissioners (not exceeding ten). Sub-section (3) stipulates that the abovementioned members of the Commissioner shall be appointed by the Governor on the recommendation of committee consisting of the Chief Minister, the Leader of Opposition in the Legislative Assembly and a Cabinet Minister to be nominated by the Chief Minister. 6. Sub-section (5) of Section 15 stipulates the requisite qualifications for a person to be chosen as a member of the State Information Commission, Sub-section(6) disqualifies certain classes of person such as members of Parliament etc. for being chosen as the members of the State Information Commission. Whether the choice made by the Governor in appointing a member to the State Information Commission is right or not, whether the appropriate procedure in making such a choice is followed or not can always be the subject matter of a dispute as it is in this case. When such questions are raised in any legal proceedings either before this Court or before any other court, whether the Governor could be made a party to the legal proceedings, is the issue to be examined. 7. By the order under appeal, a learned Judge of this Court opined that the Governor could not be arrayed as a party respondent in view of the bar contained under Article 361 of the Constitution of India. It is the correctness of that conclusion which is required to be decided in this appeal. 8. The learned Single Judge reached such a conclusion relying upon an earlier Division Bench decision of this Court in Gopalakrishnan v. Chancellor, Kerala University [1990 (1) KLT 681] which in turn relied upon Dr. S.C. Barat v. Hari Vinayak Pataskar [AIR 1962 MP 73], Jothi Prasad v. Kalka Prasad [AIR 1962 All.128], M. Kiran Babu v. Government of Andhra Pradesh [AIR 1986 AP 275] 9. Before we consider the submissions made by the learned counsel for the appellant and the learned Advocate General we deem it appropriate to examine the scheme of Article 361 of the Constitution of India which reads as follows: “361. Before we consider the submissions made by the learned counsel for the appellant and the learned Advocate General we deem it appropriate to examine the scheme of Article 361 of the Constitution of India which reads as follows: “361. Protection of President and Governors and Rajpramukhs.-(1) The President, or the Governor or Rajupramukh of a State, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. Provided that the conduct of the President may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under Article 61. Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India of the Government of a State. (2) No Criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any court during his term of office. (3) No process for the arrest or imprisonment of a President, or the Governor of a State, shall issue from any court during his term of office. (4) No civil proceedings in which relief is claimed against the President, or the Governor of a State, shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President or as Governor of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefore, the name, description and place of residence of a party by whom such proceedings are to be instituted and the relief which he claims: 10. Before we examine the various decisions referred on either side, we would like to analyze the content of Article 361. Before we examine the various decisions referred on either side, we would like to analyze the content of Article 361. Article 361(1) declares that the Governor of a State shall not be answerable to any Court (i) for the exercise and performance of the powers and duties of his office (ii) for any act done or purporting to be done by him in the exercise and performance of those powers and duties. Clause (2) declares that no criminal proceedings shall either be instituted or be continued if already pending against the Governor of a State in any Court during his term of office. The immunity under Article 361(1) operates not only during the continuance in the office of the person, but also subsequent thereto with regard to any act or omission connected with the performance of the duties of his office. Whereas clause (2) only affords a temporary protection from criminal proceedings against the incumbent of the office during the incumbency. Clause (3) declares that no process of arrest or imprisonment shall issue from any court during such incumbency. It may be mentioned that a process of arrest or imprisonment may be in connection with a civil dispute or criminal case. It could be a consequence of a civil liability determined by a competent Court either prior to or after the ascendancy of a person into the office. Such determination during the incumbency is possible as there is no immunity granted to the incumbent regarding obligations and liabilities acquired or incurred purely in the private capacity of the incumbent (either before or after entering the office). Article 361 (4) grants a limited immunity to the effect that no civil proceedings shall be instituted during the incumbency, unless notice had been delivered to such an incumbent satisfying the various factors such as the cause of action, particulars of the party proposing to initiate the proceedings and the reliefs sought by him etc. Though on a literal reading of Article 361(1) it appears to be providing an absolute immunity in favour of the governor from any act or omission in the exercise and performance of the powers and duties of his office. The scheme of this Article indicates that the immunity under Clause (1) is only limited to the civil liability arising out of the exercise and performance of the powers and duties of the office of the governor. The scheme of this Article indicates that the immunity under Clause (1) is only limited to the civil liability arising out of the exercise and performance of the powers and duties of the office of the governor. Naturally the question arises that what are the powers and the duties of the office. 11. One of the first cases which considered the scope of the immunity under Article 361 is AIR 1954 Andhra 9. An appeal by an employee of the State who was compulsorily retired lay to the Governor under the Civil Services Rules of the State. One of the employees compulsorily retired preferred such an appeal. The Governor sent the appeal to the concerned Secretary of the Government for a consideration. Challenging the decision of the Governor to so delegate the appellate power, a writ petition came to be filed impleading the Governor as a party respondent to the writ petition. The learned Chief Justice who heard the matter took note of the fact that under various articles of the Constitution i.e., 154, 161 and 162; the Governor of a State is invested with various powers, executive and judicial, of the State. The learned Judge also took note of the fact that either the Parliament or the State legislature may by law (which includes the ordinance issued either by the Governor or the President) confer certain powers on the Governor. The learned Judge further observed that there is a possibility of a Governor being invested with certain functions either by the rules made under Article 309 of the Constitution or by the subordinate legislation made in exercise of the delegated power under a statute. After taking note of the abovementioned possibilities the learned Judge observed at paragraph 11 as follows: “Therefore there are many ways by which a power may be conferred on the Governor qua Governor, which will enable him to exercise that power by virtue of his office as Governor. All the powers exercisable by a Governor by virtue of his office can be exercised only on the advice of the Ministers, except in so far as the Constitution expressly or perhaps by necessary implication says that he can exercise those powers in his individual discretion.” 12. All the powers exercisable by a Governor by virtue of his office can be exercised only on the advice of the Ministers, except in so far as the Constitution expressly or perhaps by necessary implication says that he can exercise those powers in his individual discretion.” 12. Further at paragraph 12 it is held that there can be a second category of powers conferred on the Governor acting in a different capacity though he occupies that capacity by virtue of the fact of holding the office of Governor. In this regard at paragraph 12 it is stated as follows: “There may be a second category of powers conferred on the Governor qua Governor, but in a different capacity though he occupies that capacity by virtue of his office as Governor. A statute may confer on a Governor the ‘ex officio’ Presidentship of a charitable institution.” 13. The learned Judge also recognizes the third possibility of the acts done by the Governor in his personal capacity. After taking note of the above, at paragraph 13 the learned Judge held as follows: “13. Under Article 361 there is an absolute immunity for the first category of acts, but only a limited one in respect of the other two. In respect of the first he is not answerable to any Court of law. No Court can compel him to show cause or defend his action. In the case of official acts an absolute immunity from the process of Court is given and this immunity extends not only to his official acts but also to acts purporting to be done by him in exercise of the powers conferred on him, so long as he is not guilty of dishonesty or bad faith. But this will not preclude the acts of the Governor from being questioned if they can be done without issuing a process on him. Indeed Article 361 itself recognizes that this immunity would not restrict the right of any person to bring appropriate proceedings against the Government.” 14. It can be seen from paragraph 13, the learned Chief Justice held that in so far as the first category of the acts of the Governor is concerned, there is an absolute immunity under Article 361. Indeed Article 361 itself recognizes that this immunity would not restrict the right of any person to bring appropriate proceedings against the Government.” 14. It can be seen from paragraph 13, the learned Chief Justice held that in so far as the first category of the acts of the Governor is concerned, there is an absolute immunity under Article 361. With respect to the activity falling under the said category the Governor cannot be called upon to show cause or defend his actions, but the action of the Governor can be questioned in a court of law without issuing process to the Governor. The judgment does not contain reasons for the conclusion that the second category of powers and duties are not entitled to the immunity under Article 361(1). Perhaps for the reason that on the facts of the case, such a question did not arise. 15. The question squarely fell for consideration before a Division Bench of Madhya Pradesh High Court reported in Air 1962 MP 73(supra). The facts of the case are that under the Jabalpur University Act the Governor of Madhya Pradesh was the Chancellor. The Vice Chancellor of the University was required to be appointed by the Chancellor after following the procedure prescribed under the Act. Challenging the appointment of the Vice Chancellor, a writ petition was filed showing the Chancellor as a eo-nominee party to the writ petition. The question was whether such a proceeding was permissible in view of the immunity granted to the Governor under Article 361 of the Constitution. The submission on behalf of the Governor was that though the appointment of the Vice Chancellor was made by him in his capacity as the Chancellor under the University Act, the immunity under Article 361 (1) is available to the Governor for not only the acts done by the Governor in discharge of his constitutional obligations but also extended to the acts done by the governor by virtue of any obligation imposed by an Act or Rules on the Governor. At paragraph 3 of the judgment the submission is summarized as follows: “3. At paragraph 3 of the judgment the submission is summarized as follows: “3. The argument of Shri. Chitale was that Article 361 gave absolute personal immunity to the Governor for all his public acts and partial immunity for all private acts; that the immunity under clause (1) of Article 361 was not only in respect of the exercise and performance of the powers and duties under the Constitution of his office by the Governor or for any act done or purported to be done by him in exercise of those powers and duties but also in respect of the exercise and performance of the powers and duties conferred on the Governor under any Act or rule and for any acts done or purported to be done in exercise of those powers; and that there were in clause (1) no words to limit the protection given by that clause to the exercise and performance of the powers and duties under the Constitution of his office by the Governor or to acts done in the exercise of those powers.” 16. The Division Bench on an analysis of the various provisions of the Constitution, substantially agreed with the conclusions reached in Gnanamani v. Governor of Andhra [AIR 1954 Andhra 9] i.e, that the Governor has various powers and duties specified under various Articles of the Constitution. The Division Bench also took note of the fact that the Legislature is not prevented from conferring any functions of the Governor. The Court held The powers and duties conferred by such Acts and rules on the Governor qua Governor are “the powers and duties of his office”. They are not conferred in so may words by any article of the Constitution, but they flow from the working of several articles of the Constitution. Such powers and duties when conferred on the Governor qua Governor are also exercised by him on the advice of the council of ministers except in so far as he is by or under the Constitution required to exercise his functions in his discretion that such powers and duties conferred on the Governor qua Governor are also exercised/performed by him on the advice of the council of Ministers and therefore in such cases also under Article 361(1) of the Constitution the Governor is protected from being called upon by any Court to explain his actions. The learned Judges also noted that though the Governor is personally protected, his action is always amendable to the judicial scrutiny. The learned Judges however held that the powers and duties exercisable by the Governor in his capacity as a holder of a statutory office such as the Chancellor are not entitled to the protection either under Article 361 (1) or (4). In this regard it is held at paragraph 9 as follows: “When an Act confers power on the Governor not qua Governor but in a different capacity held by him by virtue of his office as Governor, the powers and duties so conferred are not the powers and duties of the office of the Governor. They are the powers and duties of a different office which the Governor holds by virtue of his office as Governor. It is altogether erroneous to say that as the other office is held by the person who is the Governor of the State by virtue of his office as Governor, therefore the powers and duties he exercises or performs of that other office under the relevant Act are the powers and duties of this office as Governor.” 17. The Division Bench disagreed with the decision of the Andhra Pradesh High Court which classified such powers as the second category of powers of the Governor and entitled for a limited immunity under Article 361(4). The reasons given by the Division Bench for disagreeing with the earlier decision of the Andra Pradesh High Court are as follows: “Thus the powers and duties that the Chancellor exercises or performs under the Act are not any powers or duties conferred on the Governor qua Governor or of a capacity which he occupies by virtue of his office as Governor. They are the powers and duties of a public capacity held by the personage who is also the Governor. The Chancellor’s powers under the jabalpur University Act are thus not the powers and duties of the office of the Governor and consequently the protection provided by Article 361(1) cannot be invoked by the Chancellor in respect of the exercise and performance of the powers and duties of his office as Chancellor under the jabalpur University Act. The Chancellor’s powers under the jabalpur University Act are thus not the powers and duties of the office of the Governor and consequently the protection provided by Article 361(1) cannot be invoked by the Chancellor in respect of the exercise and performance of the powers and duties of his office as Chancellor under the jabalpur University Act. The extension of immunity under Clause (1) to the Chancellor would lead to the strange result that while in respect of an action of the Governor as the Head of the State Executive appropriate proceedings against the State would be open, it would not be permissible for any person to question the action of the Chancellor in any proceedings, for the reason that the Chancellor’s action not being the action of the Governor as the Head of the State Executive the second proviso would have no applicability.” 18. We cannot have any other opinion regarding the statement of law made in the first part of the above extract, but we must say with respect that we are unable to agree with the later part of the statement i.e. if immunity under Article 361 is extended to the activity of the Chancellor, the same would lead to a strange result that the actions of the Chancellor would not be amenable to any judicial scrutiny, as such actions are not covered by the second proviso to Article 361(1). (We shall examine the logical correctness of the said statement later). Suffice to take notice of the fact that the Division Bench held that the Governor acting as Chancellor of a University by virtue of a statute does not get any immunity either under Article 361(1) or (4). “We are clearly of the opinion that no immunity is attached under clause (4) of Article 361 to the respondent No.1 – Chancellor’s acts.” Coming to the logic adopted by the judgment, we are respectfully of the opinion that the learned Judges proceeded from a premises which is fundamentally wrong. The learned Judges presumed that the right of a party to seek redressal of the injury resulting from the action taken in the name of the Governor flows from Article 361(2). In our view, such right exists independently. Substantive rights of persons are granted either by the Constitution or laws or created by contract or custom. The learned Judges presumed that the right of a party to seek redressal of the injury resulting from the action taken in the name of the Governor flows from Article 361(2). In our view, such right exists independently. Substantive rights of persons are granted either by the Constitution or laws or created by contract or custom. When such substantive rights are violated, the injured have a right to seek redressal by approaching the appropriate legal forum Section 9 of the Code of Civil Procedure recognizes the right to file any suit of civil nature asserting the existence of a legal right and seeking an appropriate remedy depending upon the nature of the grievance. Article 32 guarantees a remedy when fundamental right guaranteed under the Constitution is infringed. Article 226 provides for a jurisdiction to enforce fundamental rights and also other legal rights. Article 361(2) only recognizes the right of the affected person to assert such rights notwithstanding the personal immunity granted to the Governor. Therefore, the conclusion that if Article 361(1) is interpreted to include the actions of the Governor not only in his capacity as Governor, but also in a different capacity (such as the Chancellor) the affected party’s right to question such action would be lost – is without any basis in law. 19. A Division Bench of this Court in a case reported in Gopalakrishnan v. Chancellor [1990 (1) KLT 681] also considered the question. Under the Kerala University Act, 1974 the Governor of Kerala happens to be the Chancellor and authorized to appoint the Vice Chancellor after following the procedure prescribed under the said Act. Challenging the appointment of a Vice Chancellor, a writ petition came to be filed in this Court. The ground was that the Chancellor did not seek the advice of the council of Ministers and consequently the appointment is invalid. According to the writ petitioner, the Chancellor was bound to act in accordance with the advice of the council of Ministers. This Court rejected the challenge holding that the Chancellor, though happens to be the Governor of the State acts in a different capacity while discharging the statutory functions, and is not bound to seek the advice of the Cabinet for the discharge of such functions. This Court rejected the challenge holding that the Chancellor, though happens to be the Governor of the State acts in a different capacity while discharging the statutory functions, and is not bound to seek the advice of the Cabinet for the discharge of such functions. In the process the Court had to consider a submission that if the Chancellor is considered not to be acting as a Governor and therefore not bound to take the advice of the Ministers, the Chancellor would lose the protection created under Article 361(1) of the Constitution of India. At paragraph 39 of the judgment rejecting the submission this Court held as follows: “39. There was a faint argument that if the contention canvassed by the petitioner were not accepted, the Governor will be deprived of the immunity available under Art.361 of the Constitution. This aspect has been dealt with by the High Court of Madhya Pradesh in Barat’s case (AIR 1962 M.P.73). Art.361 gives personal immunity to the Governor for the exercise and performance of the powers of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. This immunity is not in any manner whittled down or affected by exposing the statutory actions of the Chancellor open to challenge, if they are not in accord with the statue or are otherwise available in law. We do not accept this plea of the petitioner.” With utmost respect for the Hon’ble Judges we are of the opinion that the submission went unanswered. 20. Reference was also made to the following decisions: (1) The Dravida Munnetra Kazhagam v. The Governor of Tamil Nadu [1994 (1) LW 145 (Madras)] (2) Rameswar Prasad v. Union of India [(2006)2 SCC 1] (3) Gnanamani v. Governor of Andra [AIR 1954 Andra 9] and (4) Y.S. Rajasekhara Reddy v. Governor of A.P. [1999 (6) ALT 381]. The above decisions of the Madras and Andra Pradesh High Courts are not relevant in the context of the controversy before us. The above decisions of the Madras and Andra Pradesh High Courts are not relevant in the context of the controversy before us. In both the cases the writ petitions were filed under Article 226 of the Constitution questioning the action of the Governors of the respective States in (1) declining to grant sanction to prosecute the Chief Minister in office and (2) not taking any decision on a representation seeking the sanction for the prosecution of the Chief Minister in office respectively. In both the cases the Governor was sought to be impleaded as a party respondent to the writ petitions. Both the writ petitions are held not maintainable against the Governors. In the first case it was held that, though the power exercised by Governor in declining to accord the sanction was in discharge of an obligation arising under Section 197 of the Code of Criminal Procedure and Section 19 of the prevention of Corruption Act, such power is exercised by the Governor in his capacity as Governor and therefore the Governor is not answerable to any Court in view of the immunity provided under Article 361(1) of the Constitution of India. Coming to the second case cited above, the Andra Pradesh High Court dismissed the writ petition placing reliance on the abovementioned judgment of the Madras High Court. In neither of the cases it was in issue whether the Governor acting in a different capacity, such as the Chancellor of a University, can claim the immunity under Article 361(1) of the Constitution of India. 21. Coming to the judgment of the Supreme Court referred to supra, a notification dated 23.05.2005 issued by the president of India by which the Legislative Assembly of the State of Bihar was ordered to be dissolved; was challenged. In the said case, incidentally the scope of immunity under Article 361(1) to the Governor was considered by the Supreme Court as there were certain allegations against the then Governor of Bihar in making recommendation to the president of India for the dissolution of the Legislative Assembly. We are of the opinion that the issue is entirely different and does not throw any light on the question on hand. 22. We are of the opinion that the issue is entirely different and does not throw any light on the question on hand. 22. In the result, we left with the two views; the one propounded in AIR 1954 Andra 9 (supra) that the Governor discharging certain statutory obligations not qua Governor but in a different capacity such as the Chancellor enjoys a limited protection contemplated under Article 361 (4) and the other two judgments of Madhya Pradesh and Kerala which hold that no immunity is available in such a situation. 23. the limited protection mentioned in the judgment in AIR 1954 Andhra 9 (supra) is the protection contemplated under Article 361(4) which postulates that no civil proceedings shall be initiated against the Governor during his term of office in any Court in respect of any act done or purporting to be done by him in his personal capacity; unless certain procedure specified in the later part of the said Clause is followed (which is already examined earlier). If civil proceedings cannot be initiated except after complying with the stipulations of Article 361(4), even in respect of purely private obligations of the holder of the office of the Governor, it would be strange logic to hear that the holder of the office of the Governor does not enjoy even that minimum protection with respect to his actions undertaken in discharge of the duties or obligations entrusted to him by various statues. 24. To understand the nature and scope of immunity granted under Article 361, it is necessary to understand the purpose behind the grant of immunity. 25. It must be remembered that Constitution is the fundamental law establishing a system of governance. The purpose behind our Constitution is the establishment of a democratic state for the welfare of the people. Achievement of such a goal requires bold and decisive action on the part of the Government, but at the same time the action of the Government should be in accordance with the Constitution and the laws made thereunder without infringing the rights of the people. All forms of constitutional governance provide some extent of immunity from legal proceedings to those who are entrusted by the Constitution and the laws, the responsibility of taking decisions in the process of enforcement of law – the legislators, the judges and the executive. All forms of constitutional governance provide some extent of immunity from legal proceedings to those who are entrusted by the Constitution and the laws, the responsibility of taking decisions in the process of enforcement of law – the legislators, the judges and the executive. The extent of immunity varies from branch to branch of the Government and country to country. 26. Immunity from legal proceedings either civil or criminal in favour of the Crown and its servants in known to English Law. The nature and extent of the immunity varied from time to time and varied with the nature of the legal proceeding and case of action. A very complex body of law exists on this subject. At present the area is largely governed by the Crown Proceedings Act, 1947. In our opinion a detailed examination of the English Law is not necessary as there does not appear to be any provision parallel to Article 361 of the Constitution of India. 27. Even under the American Constitution there is no provision parallel to Article 361. The concept of the immunity of the executive was considered by the U.S. Supreme Court in some decisions and in our opinion they can be gainfully referred to. 28. In Nixon v. Fitzgerald [457 US 731], the US Supreme Court examined the purpose behind the grant of immunity to public officers and held that “the interests of the people” required grant of absolute immunity to public officers and opined that in the absence of the immunity officers would hesitate to take decisions which are likely to injuriously affect the claims of particular individuals even when public interest required to take bold and unhesitating action. Relying on an earlier decision in Spalding v. Vilas [161 US 483], wherein it was held by the supreme Court – “…. Should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs ……..”. Dealing with the question of immunity, the Court opined that its earlier decisions concerning the immunity of Government officials from civil damages liability had been guided by the Constitution, federal statutes, history, common law and concerns of public policy as illustrated by the history and structure of Government. 29. Dealing with the question of immunity, the Court opined that its earlier decisions concerning the immunity of Government officials from civil damages liability had been guided by the Constitution, federal statutes, history, common law and concerns of public policy as illustrated by the history and structure of Government. 29. Coming to the question of immunity of the President, the Court held that – “ …. A former President of the United States is entitled to absolute immunity from damages liability predicated on his official acts. We consider this immunity a functionally mandated incident of the President’s unique office, …..”. In coming to such a conclusion, the Court opined that- “In the case of the President the inquiries into history and policy, though mandated independently by our cases, tend to converge. Because the Presidency did not exist through most of the development of common law, any historical analysis must draw its evidence primarily from our constitutional heritage and structure. Historical inquiry thus merges almost at its inception with the kind of “public policy” analysis appropriately undertaken by a federal court. This inquiry involves policies and principles that may be considered implicit in the nature of the President’s office in a system structured to achieve effective government under a constitutionally mandated separation of powers.” 30. In Mitchel v. Forsyth [472 US 511], the Court once again considered the question of immunity of the Attorney General. It was a case where the Attorney General authorized electronic surveillance of the activity of certain group of people. Such an authorization was given pursuant to certain statutory obligations of the Attorney General. The Court held that the Attorney General did not derive any immunity by virtue of the office and as a member of the president’s Cabinet, but the immunity is available depending upon the nature of the function in question. The Court concluded that in common law there was no basis for the claim of immunity in favour of the Attorney General only because of his official position. The Court also opined that the function of granting sanction for the electronic surveillance, is carried out in secret and, therefore, such an activity does not deserve an immunity (obviously a concern of public policy). Another reason given by the Court is that there was no other check in the system to help preventing the abuse of the authority. 31. The Court also opined that the function of granting sanction for the electronic surveillance, is carried out in secret and, therefore, such an activity does not deserve an immunity (obviously a concern of public policy). Another reason given by the Court is that there was no other check in the system to help preventing the abuse of the authority. 31. The above two decisions, in our view, throw sufficient light, both on the purpose and need of immunity to public functionaries. 32. In the light of the principles enunciated in the above two decisions, we may now examine the historical evolution of the immunity in favour of the Governors in India and also concerns of public policy as illustrated by history and structure of the Government under the Constitution of India. Section 110 of the Government of India Act, 1919 provided for an immunity in favour of the Governor and Governor General. Subsequently, when the said Act was repealed by the Government of India Act, 1935, an immunity in favour of the Governor of a Province, (Governor-General and the Secretary of State) was provided for in Section 306, which read as follows:- “306 (1) No proceedings whatsoever shall lie in, and no process whatsoever shall issue from, any court in India against the Governor-General, against the Governor of a Province, or against the Secretary of State, whether in a personal capacity or otherwise, and, except with the sanction of His majesty in Council, no proceedings whatsoever shall lie in any court in India against any person who has been the Governor-General, the Governor of a province, or the Secretary of State in respect of anything done or omitted to be done by any of them during his term of office in performance or purported performance of the duties thereof. Provided that nothing in this section shall be construed as restricting the right of any person to bring against the Federation, a Province, or the Secretary of State such proceedings as are mentioned in Chapter III of Part VII of this Act. (2) The provisions of the preceding subsequent shall apply in relation to His Majesty’s Representative for the exercise of the functions of the Crown in its relations with Indian States as they apply in relation to the Governor-General. (2) The provisions of the preceding subsequent shall apply in relation to His Majesty’s Representative for the exercise of the functions of the Crown in its relations with Indian States as they apply in relation to the Governor-General. In the commentary on the Government of India Act, 1935, Shri. Rajagopal Iyengar (later Judge of the Supreme Court of India) commended regarding the scope of the immunity under the Government of India Act, 1919 and later Act of 1935 as follows:-“S.306.- This is an enlargement of the protection formerly afforded to the Governor and Governor-General by S.110 of the Government of India Act 1919. They were under that Act not subject to the Original Jurisdiction of the High Court in respect of acts ordered or one in their public capacity; they were however liable to the High Court’s original criminal jurisdiction for treason or felony. They were subject to courts in the mofussil. The present section is all comprehensive and protects the Governor-General, the Governor and the Secretary of State from all “process” whatsoever-including even a summons to appear as witness. It extends to all Courts in India-Civil and Criminal and applies not merely to their public acts but even to acts in a private capacity, e.g., even a suit for recovery of a debt will not lie. Cf. Hill v. Bigge, 1841, 3 Moo.P.C.465 where a suit was held to lie for a debt against the Colonial Governor of Trinidad. There is however power reserved to His Majesty in Council to relax the provisions of this section and permit proceedings to be taken. The liability of these officials to be proceeded against in England, for their personal acts, so far these proceedings could be initiated in the English Courts is not affected. Moreover, though Chapter XI of the Government of India Act is repealed, these officials could be punished for criminal action in India, by the Court of King’s Bench under the Governor’s Act 1699 as amended by later Acts”. The language of Section 306 is sweeping and provided for an absolute immunity against any legal proceedings or process, civil of criminal, being initiated against the Governors except with the sanction of His Majesty in Council. However the immunity is limited to the proceedings or processes of any court in India as pointed out by Sri. Iyengar. 33. The language of Section 306 is sweeping and provided for an absolute immunity against any legal proceedings or process, civil of criminal, being initiated against the Governors except with the sanction of His Majesty in Council. However the immunity is limited to the proceedings or processes of any court in India as pointed out by Sri. Iyengar. 33. The difference in language of Article 361 is no doubt suggestive in the light of the well settled rules of the construction of the statutes of an intention on the part of the makers of the Constitution that the scope and extent of immunity given by Article 361 shall not be identical with the immunity given under Section 306 of the Government of India Act, 1935. But in our view such a rule of interpretation should not be the only rule which governs the interpretation of a Constitutional provisions. 34. Examined from the angle of the “concerns of public policy’, grant of immunity from legal proceedings and legal process in favour of any person in a system of law founded on the doctrine of equality and rule of law would normally be inconsistent with the concerns of public policy unless there are compelling reasons illustrated by either the history or the structure of the government under the Constitution to provide such an immunity. The history of the immunity in favour of the Governors in this country, as already examined, in our opined, does not throw sufficient light to determined the question and arrive at a definite conclusion regarding the scope and purpose of Article 361. Therefore, we are of the opinion that the concerns of public policy underlining the immunity to the Governor should be examined in the light of the structure of the Government under the Constitution of India. 35. The nature of the powers and functions of President and Governors under the Indian Constitution are not similar to the powers of the President of America. Under the American Constitution, the President is directly elected by the people and not bound by the advice of the Cabinet, but answerable only to the Congress; whereas in India both the President and Governors are bound by the advice of the Cabinet (barring in a relatively limited number of areas) while they perform the duties entrusted to them under the Constitution. Therefore, it would not only be illogical but also does not serve any constitutionally desirable purpose to make them answerable to a Court for any decision taken by them basing upon the advice of the Cabinet by which they are bound. 36. Coming to the various functions entrusted to the Governor, either by the laws made by the Parliament or the concerned State Legislature or Rules made under either of them, the earlier judgments appear to have drawn a distinction on the basis of the nomenclature attached to the office held by the Governor by virtue of statutory imposition. 37. In AIR 1954 Andhra 9 (supra), it was held:-“therefore there are many ways by which a power may be conferred on the Governor qua Governor, which will enable him to exercise that power by virtue of his office as Governor. All the powers exercisable by a Governor by virtue of his office can be exercised only on the advice of the Ministers, ……” To the same effect are the observations of the Madhya Pradesh High Court in Dr.S.C. Barat’s case (supra) and at para (6) it was held:- “The effect of all these provisions is that certain powers, duties and functions may be conferred on the Governor qua Governor under any Act or rules made thereunder.” “Such powers and duties when conferred on the Governor qua Governor are also exercised by him on the advice of the Council of Ministers except in so far as he is by or under the Constitution required to exercise his functions in his discretion”. The Court held that since the impugned before the Court was the decision of the Chancellor of the University (which office was held by the Governor) and the chancellor is not acting in his capacity as Governor and, therefore, he is not liable to seek the advice of the Cabinet. We are of the opinion, such a distinction is highly artificial rooted in semantics. 38. We are of the opinion that the legal obligations to follow the advice of the Cabinet does not depend upon the name attached to the office which requires the Governor to perform certain functions. The obligations attached to a statutory office flow from the language of the statute/law. 38. We are of the opinion that the legal obligations to follow the advice of the Cabinet does not depend upon the name attached to the office which requires the Governor to perform certain functions. The obligations attached to a statutory office flow from the language of the statute/law. In our opinion, if the law is silent, as to how the power is to be exercised – whether on advice of the Council of Ministers or some other body or solely in the discretion of the incumbent of the office – Governor discharging even statutory functions is bound by the advice of the Council of Ministers unless the statute prescribes another mode for exercising the powers and discharging the functions. 39. The case on hand is a clear example of this position. The right to Information Act confers the authority on the Governor of a State to choose the Information Commissioners. The nomenclature employed is “Governor”. But, the Governor is to make the choice of the Information Commissioners on the recommendation of the Committee mentioned under Section 15(3), i.e. the Chief Minister, Leader of Opposition and one member of the Cabinet nominated by the Chief Minister. That being the specification under the law, obviously the Governor is not expected to either seek or act in accordance with the advice of the Cabinet/Council of Ministers. Nonetheless, the Governor cannot act in his absolute discretion also. Section 15(3) mandates that the Governor shall appoint the Commissioners on the recommendation of the Committee mentioned above. 40. Therefore, to make the Governor personally answerable in such a situation in a Court of law, in our opinion, would not promote any constitutionally desirably purpose. We are therefore of the opinion that the immunity under Article 361 (1) extends in an appropriate case to the Governor discharging powers and duties entrusted to him by a statute or statutory instrument irrespective of the nomenclature appended to the statutory office conferred upon the Governor. The relevant test to determine the appropriateness of the case is the nature of the function or power exercised by the Governor and the existence or otherwise of inherent safeguards against the abuse of the power. 41. In the instant case the Governor made the appointment in question on the recommendation of a statutory committee consisting of three constitutional office holders and, therefore, there is an inherent check against any abuse of the power. 41. In the instant case the Governor made the appointment in question on the recommendation of a statutory committee consisting of three constitutional office holders and, therefore, there is an inherent check against any abuse of the power. Therefore the objection of the Registry is well founded.