Madras High Court· 23 July 2026

Can an order issued in the name of the Governor be challenged on the ground that he did not himself make it?

P.Selvaraja v. The State

Crl.O.P.No.28172 of 2024 · Crl.O.P.No.28172 of 2024
Coram: Justice G.K.Ilanthiraiyan

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Answer

No. Article 166(2) provides that orders and instruments made and executed in the name of the Governor shall be authenticated in the manner specified by rules, and that the validity of an order so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. Such executive action carries a presumption of regularity, and the burden is heavy on the party who challenges it.

Headnote

Prevention of Corruption Act, 1988 — s.19(1)(b) — Constitution of India — Art.166 — Art.166(2) — Sanction to prosecute — Authentication — Quashing — Prevention of Corruption Act, 1988 — s.19(1)(b) — Constitution of India — Art.166 — Sanction signed by the Secretary for the Governor — Held: Neither the section nor Article 166 requires the Governor personally to sanction; executive action must be expressed in his name and authenticated as the Rules of Business prescribe, and a Secretary who so signs acts for the State Government. (¶24, ¶26, ¶27) Constitution of India — Art.166(2) — Authentication — Order not to be questioned — Held further: An order authenticated in the manner prescribed shall not be called in question on the ground that it was not made or executed by the Governor, and executive action carries a presumption of regularity. (¶25, ¶30) Sanction to prosecute — Statement of the signing authority — Legal effect of the order unaffected — Held further: A statement made during investigation by the officer who signed cannot override, alter or diminish the legal effect of an official order; a witness's description of the character of an official act does not determine its validity. (¶28, ¶29) Quashing — Disputed facts and evidence — Matters for the trial — Held further: On a petition to quash, the Court cannot appreciate the witnesses' statements, record findings on disputed facts, or decide whether the prosecution is malicious; those belong to the trial. Petition dismissed. (¶34, ¶37, ¶38)

In the Court's own words

Paragraph 25Article 166(2) of the Constitution of India states that Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.

Paragraph 27The Governor is the constitutional head of the State and ordinarily acts on the aid and advice of the Council of Ministers. Consequently, an order authenticated and issued by the Secretary to Government in accordance with the above stated constitutional scheme is, in the eye of law, an act of the State Government. The Secretary only acts as an authorized functionary of the Government and such an action as indicated by the Constitution of India under Article 166(2) shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.

Paragraph 30The argument that the Governor himself could not have exercised discretion in granting sanction also does not advance the appellant's case. The sanction order nowhere suggests that it was the Governor acting in his individual discretion. On the contrary, the order is an executive action of the State Government issued in the name of the Governor and authenticated by the Secretary in accordance with the constitutional mandate. Such executive action carries the presumption of regularity, and in the absence of cogent evidence demonstrating any constitutional or statutory infraction in the decision-making process, the Court cannot invalidate the sanction on speculative assumptions.

Acts & Sections

s.19(1)(b) Prevention of Corruption Act, 1988Art.163 Constitution of IndiaArt.166 Constitution of IndiaArt.166(2) Constitution of Indias.528 Bharatiya Nagarik Suraksha Sanhita, 2023s.161 Code of Criminal Procedure, 1973Tamil Nadu Government Business Rules and Secretariat Instructions, 1978

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Also decided in this judgment

Must the Governor personally accord sanction to prosecute a State employee under the Prevention of Corruption Act, 1988?Can a statement made during investigation by the officer who signed a sanction order affect its validity?How far may a High Court go into the facts on a petition to quash a charge sheet?

Plain-language answer prepared by the LexStreak Editorial Desk — verify against the judgment. Source: Madras High Court. Corrections