1. With utmost respect,it must be resoundingly stated that his Excellency the Governor of Goa has been inappropriately advised in holding out that he is a "constitutional authority" NOT AMENABLE TO THE PROVISIONS OF THE RIGHT TO INFORMATION ACT. 2. It is difficult to comprehend as to how Senior Counsel appearing for the Special Secretary to the Governor of Goa ( by implication the Governor of Goa himself) is holding out that the Office of the Governor is not amenable to the provisions of the RTI Act on account of the Governor being an authority under the Constitutiona of India. Even a cursory perusal/ reference to Supreme Court rulings on the scheme of the Constitution would make it clear that Constitutional authorities have the following three powers depending upon the domain in which they operate. These three powers are (a) legislative--- relating to the Legislature. (b) executive--relating to the Executive , and (c) judicial--relating to the judiciary, which is acknowledged to be the final arbiter under the Constitution of India. 3. A mere perusal of the Judgement passed by the Supreme Court of India in Secretary,Jaipur Development Authority v daulat mal jain (1997)1 SCC35 is sufficient to hold that the Governor of a State forms part of the Executive of a State, just as the President of India forms part of the Executive of the Union of India whilst at the same time being "constitutional authorities'. Being a "constitutional authority" does not preclude them from discharging "executive powers" . Therefore the fact of them exercising "executive powers' makes the Governor amenable to the RTI Act. Under the RTI Act only persons excluded from the provisions of the Act are not amenable to its provisions. Parliament of India clearly did not intend to exclude the Office of the President, Vice-President, Prime Minister, Governors,Chief Ministers, Ministers, and hence did not include them in the categories excluded. Even in categories excluded ,the exclusions are based on the utter sensitivity of the Executive powers exercised such as those by the Indian Intelligence agencies--whether revenue, military, domestic,international. 4.It may be stated that the Constitution envisions to establish an egalitarian social order rendering to every citizen, social, economic and political justice in a social and economic democracy of the Bharat Republic. Article 261 [1] of the Constitution provides that full faith and credit shall be given, throughout the territory of India, to public acts, record and judicial decisions of the Union and of every State. Thus in the judgement referred to above the Supreme Court had held as under: "The Governor runs the Executive Government of a State with the aid and advice of the Chief Minister and the Council of ministers which exercise the powers and performs its duties by the individual Ministers as public officers with the assistance of the bureaucracy working in various Departments and Corporate sectors etc. Though they are expressed in the name of the Governor, each Minister is personally and collectively responsible for the actions, acts and policies. They are accoutable and answerable to the people. Their powers and duties are regulated by the law and the rules. The legal and moral responsibility or liability for the acts done or, omissions, duties performed and policy laid down rest solely on the Minister of the Department. Therefore, they are indictable for their conduct or omission, or misconduct or misappropriation. The Council of Ministers are jointly and severally responsible to the Legislature. He/they is/are also publicly accountable for the acts or conducts in the performance of duties. The Minister holds public office though he gets constitutional status and performs functions under constitution, law or executive policy. The acts done and duties performed are public acts or duties as holder of the public office. Therefore, he owes ,certain accountability, for the acts done or, duties performed. In a democratic society governed by rule of law, power is conferred on the holder of the public office or the concerned authority by the Constitution by virtue of appointment. The holder of the office, therefore, gets oppotunity to abuse or misuse of the office. The politician who holds public office must perform public duties with the sense of purpose, and a sense of direction, under rules or sense of priorities. The purpose must be genuine in a free democratic society governed by the rule of law to further socio-economic democracy. The executive Government should frame its policies to maintain the social order, stability progress and morality. All actions of the Government are performed through/by individual persons in collective or joint or individual capacity. Therefore, they should morally be responsible for their actions. When a Government in office misuses its powers, figuratively, we refer to the individual Minister/Council of Ministers who are constituents of the Government. The Government acts through its bureaucrats, who shapes its social, economic and administrative policies to further the social stability and progress socially, economically and politically, Actions of the Government, should be accounted for,social morality. Therefore, the actions of the individuals would reflect on the actions of the Government. The actions are intended to further the goals set down in the Constitution, the laws or administrative policy. The action would, therefore, bear necessary integral connection between the 'purpose' and the end object of public welfare and not personal gain. The action cannot be divorced from that of the individual actor. The end is something aimed at and only individuals can have and shape the aims to further the social, economic and political goals. The ministerial responsibility thereat comes into consideration. The Minister is responsible not only for his actions but also for the job of the bureaucrats who work or have worked under him. He owes the responsibility to the electors for all his actions taken in the name of the Governor in relation to the Department of which he is the head." 5. In Shamsher Singh Vs. State of Punjab & Anr. [(1974) 2 SCC 831], a Bench of seven Judges of the Supreme Court had held that under the Cabinet System of Government as embodied in our Constitution, the Governor is the formal head of the State. He exercises all his powers and functions conferred on him by or under the Constitution, on the aid and advice of Council of Ministers, SAVE IN SPHERES WHERE THE GOVERNOR IS REQUIRED BY OR UNDER THE CONSTITUTION OF INDIA TO EXERCISE HIS FUNCTION IN HIS DISCRETION. The satisfaction of the Governor for the exercise of any power or function, required by the Constitution, IS NOT THE PERSONAL SATISFACTION OF THE GOVERNOR but is the satisfaction in the constitutional sense under the Cabinet System of Government. The executive is to act subject to the control of the legislature. The executive power of the State is vested in the Governor as head of the Executive. The real executive power is vested in the Ministers of the Cabinet. The Chief Minister and the Council of Ministers with the Chief Minister as its head aid and advise the Governor in the exercise of his executive functions. The same principle was reiterated by a Bench of three Judges in R.K. Jain Vs. Union of India [(1995) 4 SCC 119]. Therein, it was held that in a democracy governed by rule of law, State is treated on par with a person by Article 19 (6) in commercial/industrial activities. 6. In the light of the foregoing, with utmost respect, in the exercise of our right as citizens of India to fair comment ,we are constrained to proclaim resoundingly that the Special Secretary to the Governor and the Senior Counsel holding for him is STRAINING AT A GNAT. The faster he parachutes/concedes the fallacious line of reasoning, the better for him to save face, as also spare the resources of tax-paying citizens. Senior Counsel/s are expected to propound the law clearly,especially when it relates to precedents earlier set/pronounced by the Supreme Court of India. WAKE UP MR. SPECIAL SECRETARY TO THE GOVERNOR OF GOA. WAKE UP SENIOR COUNSEL REPRESENTING THE SPECIAL SECRETARY REPRESENTING THE GOVERNOR OF GOA! LONG LIVE THE REPUBLIC OF UNDIA,THAT IS BHARAT. Gerry
