Biman Chandra Bose vs Dr. H.C. Mukherjee, Governor

This was a case of Calcutta High Court, when an advocate who was also well-accomplished in literature, offered his service to governor and requested to nominate him under to legislative council for the seats reserved for literature, art, and social service as per article 171 (5) of the constitution.

But, when notification of nominations of people for reserved seats, was released, there was not the name of this advocate.

He filed a writ petition to Calcutta High Court under Article 226 of the Constitution praying court to direct Governor to recall all nomination. The advocate general questioned the maintainability of the petition under Article 361 which provides that governor’s decision shall not be called in question before any court.

But the petitioner contended that in professing to act under Article 171 for the purpose of making the nominations as contemplated by Clause 5 thereof, the Governor has to act in his discretion and as it is clear from certain public speeches made by the Governor that he did not know that he had the power to make any nomination, the Governor cannot be said to have exercised his discretion in making the nomination.

He referred to Arts. 154,161, 192 and 213 which confer certain powers upon the Governor. He also referred to Article 166 of the Constitution and submitted that as it does not appear that any rules as contemplated by Clause 3 thereof have been framed by the Governor, it must be held that in making nominations under Article 171 the Governor does not act on the advice of his council of ministers but in his discretion.

Analysis of the Court

After considering the case and hearing the arguments of counsels, the court analysed the case as follows-

  • “It appears however from Article 163 that except in matters the Governor is required to act in his discretion, he is to act on the advice of the council of ministers, and the only provision which has been pointed out by the learned Advocate-General which requires the Governor to act in his discretion, is in Sch. VI of the Constitution being Item 9 thereof relating to licenses or leases for the purpose of prospecting for, or extraction of minerals.
  • It may be pointed out that Article 171 does not state that in making nominations the Governor is bound to act in his discretion. This expression “in his discretion” and another expression “in his individual judgment” are expressions which were freely used in the Government of India Act, 1935. Reference may be made to Sections. 50, 51, 52(3), 55, 56, 57, 58, 228 and various other sections of the Government of India Act, 1935.
  • Unless a particular article expressly so provides, an obligation to act in his discretion cannot be imposed upon the Governor by mere implication. There is nothing to show that no rules as contemplated by Article 163(3)(sic) have been framed by the Governor, Article 163 makes it quite clear that except in cases the Governor is required to act in his discretion, he is to act on the advice of his ministers and so it must be presumed that in making the” impugned nomination she must have acted on the advice of his council of ministers. The Court is entitled to presume the regularity of official acts.
  • Now, adverting to Article 361 of the Constitution it appears upon an analysis of this Article that the Governor is not answerable to any Court for the exercise and performance of the powers and duties of his office. In other words, no Court can compel the Governor to exercise any power or to perform any duty nor can a Court compel him to forbear from exercising his power or performance of the duties. He is not amenable to the mandate or writs or directions issued by any Court.
  • These words are wide enough to bar any interference by the Court in respect of the official acts or omissions of the Governor. But the framers of the Constitution have taken the precaution of using additional words in the Article, with a view to extend the protection even in respect of acts or omissions which can be said to be incidental to the exercise of the power and performance of the duties of the office of the Governor.
  • Consequently, the Article affords immunity not only, in respect of the exercise and performance of the powers and duties of the office but also in respect’ of “any act done or purporting to be done by him “in the exercise and performance, of those powers and duties. These words “for any act done etc.” are commonly used in provisions of statutes having for their object the creation of absolute or partial bar of interference by Courts in respect of certain acts done or purported to be done under such statutes.
  • A comparison of Clause 1 of Article 361 with Clause 4 thereof makes it clear that in respect of official acts an absolute bar is created but in respect of acts done in personal capacity a partial bar in the shape of notice for a period of two months prior to institution of civil .proceedings is imposed, similar to that to be found in Section 80, Civil P. C. or Section 198, Sea Customs Act and various other statutes.
  • Turning to the facts of the present case it is quite clear that the act impugned is the nomination of certain members of the legislative council of the State by the Governor done under Cl (3) (e) of Article 171 read with Clause 5 thereof. The notification annexed to the petition shows that the Governor has professed to act in pursuance of these clauses of Article 171 of the Constitution. It is impossible, in my view, to divorce this act done by the Governor from his official capacity.
  • It has been suggested that the nominations have been made by the Governor arbitrarily and in contravention of the Constitution and for such ultra vires or arbitrary acts, Article 361 affords no immunity. I am unable to accede to this contention.

 The words “purporting to be done” are of very wide application and even though the act done is outside or in contravention of the Constitution, it comes within the protection of Article 361, if the act is professed to be done in pursuance of the Constitution. 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.  

  • The protection is intended to be real and not merely illusory. It may be that some of the persons nominated have not the requisite qualifications but it may be that the Governor was misinformed about the qualifications of such persons or it may be that he relied on the advice of his council of ministers and as a result of their recommendations, has made the nominations.

  The nominations may be the result of an erroneous decision or it may be a case of wrong choice but it cannot be said upon the materials which are before me, that the Governor acted mala fide in exercising his powers under Article 171 of the Constitution.   In my view Article 361 creates an absolute bar and this application in so far as it seeks any relief against the Governor is wholly incompetent.

Nomination Only after Election

A further point was raised by counsel to the effect that the Governor has no power under Article 171 to make the nominations until the elections are over and reference has been made to various Clauses (a) to (e) of Clause 3 of Article 171 for showing that the scheme of the article is that it is only after the persons contemplated in Clauses (a) to (d) are elected that the Governor should make the nominations and adjust his nominations in accordance with the elections of persons in the different categories specified in Clauses (a) to (d).

It was suggested that if too many or very few persons representing literature or science have been elected in respect of the electorates mentioned in Clauses (a) to (d) the Governor should reduce or increase his nominations in respect of those categories accordingly.

The court has said that,

“It appears to me however, upon a plain reading of the Article that there is no indication to be found therein, which has the effect of postponing this act of nomination until after the election is over. It is well-settled rule of interpretation that the provisions of a Constitution should not be construed in a narrow or pedantic sense. As there is no warrant for putting a restriction on the power of the Governor, I do not propose to put any such construction, on the Article in question.”


The court concluded that, “The Governor not being answerable to Court by reason of Article 361, it follows that the validity or invalidity of the nominations cannot be enquired into by this Court in the present case. The Governor not being liable to justify the nominations is not bound to disclose any facts relating to such nominations.

The other respondents cannot also be properly called upon to support or justify the nominations because they may not know anything about the facts or considerations which led the Governor to make the nominations. The “advice tendered by the ministers to the Governor cannot also be enquired into by the Court by reason of the provisions of Article 163(3) of the Constitution.”


Biman Chandra Bose vs Dr. H.C. Mukherjee: AIR 1952 Cal 799, 56 CWN 651