Discuss the constitutional position of the Governor when granting sanction to prosecute a Minister. When can the Governor act contrary to the advice of the Council of Ministers?

Under Article 164(1), Ministers hold office "during the pleasure of the Governor". This makes the Governor the competent authority to sanction their prosecution under Section 19 of the Prevention of Corruption Act, 1988 [2]. The constitutional question is whether the Governor uses this power on ministerial advice or in their own discretion.

Constitutional position of the Governor

• General rule (aid and advice): Article 163(1) requires the Governor to act on the Council of Ministers' advice, except where the Constitution requires discretion. Shamsher Singh (1974) confirmed that the Governor is a constitutional head.
• Sanction is an executive act: like other executive decisions, it normally goes through the Cabinet.
• Statutory framework: since the 2018 amendment, Section 19 protection also covers former Ministers. Section 17A adds a requirement of prior approval before any enquiry into official decisions [2].
• Recent example: in November 2026, Keralam Governor Om Prakash Mathur sanctioned the prosecution of ex-Sports Minister V. Abdurahiman in the Messi-visit case. He acted on the Chief Minister's request, which was based on an SIT report [1].

When the Governor can act contrary to advice

• Apparent bias: in M.P. Special Police Establishment v. State of M.P. (2004), a Constitution Bench upheld a Governor's sanction to prosecute two Ministers even though the Cabinet had refused it [3].
• No one should judge their own case: a Cabinet deciding on its own colleagues cannot be neutral. Insisting on its advice would let Ministers shield themselves.
• Irrational or perverse advice: where the Cabinet's refusal ignores material on record, the Governor may decide independently [3].
• Protecting the rule of law: a Governor bound by such advice would make the PC Act toothless against the political executive.
• Limits: this discretion is exceptional. It must be reasoned and based on material on record, and it remains open to judicial review. It is not a licence for politically motivated prosecution.

In short, the Governor normally acts on advice. The 2004 ruling, however, allows an exception where the Cabinet's bias is apparent, so that sanction cannot become a shelter for the corrupt. Two reforms would strengthen the process:

• enforcing the three-month deadline for sanction decisions, which the Select Committee noted carries no penalty for delay [4];
• independent screening by the Lokpal or Lokayukta, as Justice Viswanathan proposed in the 2026 split verdict on Section 17A [5].

Together, these would protect equality before the law (Article 14) while guarding honest Ministers against vendetta.