<p>Chief Minister Yeddyurappa is to face prosecution and if the BJP top brass too is defiant, Karnataka has to go without a ‘governing government.’ The supreme court has laid down that while considering prosecution against cabinet members and the chief minister, the governor can act independently without the recommendation of the council of ministers.<br /><br />This apex court decision goes against the precedents of parliamentary democracy, but as the law laid down by the apex court, it is unquestionable. Its political morals are good, but will good morals make good laws?<br /><br />According to the order of precedents of state power, the prime minister or the president is the chief prosecutor of the nation, and the chief minister is the chief prosecutor of the state. In the instant case, even if a prosecution is ordered by the governor or by the court itself, the executive has the power to withdraw the prosecution according to procedural law, and what stands in the way of the chief minister withdrawing the same prosecution? What prevents the chief minister from remitting his own sentence and exempting himself finally —these are the odds of law, still untested.<br /><br />A paralysed individual<br /><br />Then, what are the wrong political consequences of prosecuting a sitting chief minister? A chief minister under prosecution and standing in the dock of a criminal court is not a chief minister who can act as head of executive power. He is a paralysed and frustrated individual, and he cannot carry on the administration with dynamism and leadership.<br /><br />We see scandals and corruption charges plaguing prime ministers and presidents, and if, on the basis of these allegations, they are prosecuted in court, I think, no government can function. Therefore, the present action of the Karnataka governor has thrown up unprecedented political and constitutional questions.<br /><br />Can the president of India give sanction to a petitioner to prosecute prime minister Manmohan Singh on the corruption committed in 2G spectrum and in the conduct of Commonwealth Games? If the Bhardwaj precedents is followed, there is no difficulty for such a drastic step.<br /><br />Simply based on a petition by anybody, the president can launch prosecution against the prime minister and scuttle the functioning of the government of India, at one stroke. <br /><br />While under prosecution, a prime minister need not resign, but how can a prime minister in the dock of a court govern the country?<br /><br />A paralysed government of India will be an ungoverning government, and so no government at all, as the Nixon presidency lay moribund under the Watergate hammer blows. A prime minister or chief minister is in office to lead the government of the country or a state and not to test the validity of his office under municipal laws.<br /><br />The demagogue and the idealist will ask what is the other option for the people to respond when a chief minister and a prime minister is corrupt? The real and punitive response shall be their overthrow in the next ballot.<br /><br />A prime minister or a chief minister, charged with a non-bailable offence can be remanded to prison too, and how can he run the administration from the prison cell? Of course it will be a spectacular democratic drama to witness the ruling chief minister lying in a prison cell and ruling the state hand-cuffed!<br /><br />If the chief minister gives nod to prosecute a member of the cabinet, there is no harm as he can remove that minister and appoint another in his place. But what about a chief minister who leads the pack, who will not resign and will not and need not give place to any substitute as he is not constitutionally compelled to do so? Is the administration of the state more important or the corruption charges?<br /><br />India has to make a new law that the prime minister or the chief minister cannot be prosecuted while in office and any prosecution has to wait till he quits office or he is forced to quit. This is to save the administration.<br /><br />Governor Bhardwaj’s utterances before and after the sanction speaks of his ire and malice against the chief minister and based on these words of malice alone the sanction order appears to be coloured. President of India and governor have to act on the advice of the council of ministers, and any change from that track will only destabilise the state structure.<br /><br />It was well known that the American courts were blatantly anti-Nixon, but they too were cautious enough to say that a president in office cannot be drawn into court, and so they declared Nixon only an ‘un-indicted co-conspirator’ in the Watergate scandal.<br /><em><br />(The writer is a retired judge)</em></p>
<p>Chief Minister Yeddyurappa is to face prosecution and if the BJP top brass too is defiant, Karnataka has to go without a ‘governing government.’ The supreme court has laid down that while considering prosecution against cabinet members and the chief minister, the governor can act independently without the recommendation of the council of ministers.<br /><br />This apex court decision goes against the precedents of parliamentary democracy, but as the law laid down by the apex court, it is unquestionable. Its political morals are good, but will good morals make good laws?<br /><br />According to the order of precedents of state power, the prime minister or the president is the chief prosecutor of the nation, and the chief minister is the chief prosecutor of the state. In the instant case, even if a prosecution is ordered by the governor or by the court itself, the executive has the power to withdraw the prosecution according to procedural law, and what stands in the way of the chief minister withdrawing the same prosecution? What prevents the chief minister from remitting his own sentence and exempting himself finally —these are the odds of law, still untested.<br /><br />A paralysed individual<br /><br />Then, what are the wrong political consequences of prosecuting a sitting chief minister? A chief minister under prosecution and standing in the dock of a criminal court is not a chief minister who can act as head of executive power. He is a paralysed and frustrated individual, and he cannot carry on the administration with dynamism and leadership.<br /><br />We see scandals and corruption charges plaguing prime ministers and presidents, and if, on the basis of these allegations, they are prosecuted in court, I think, no government can function. Therefore, the present action of the Karnataka governor has thrown up unprecedented political and constitutional questions.<br /><br />Can the president of India give sanction to a petitioner to prosecute prime minister Manmohan Singh on the corruption committed in 2G spectrum and in the conduct of Commonwealth Games? If the Bhardwaj precedents is followed, there is no difficulty for such a drastic step.<br /><br />Simply based on a petition by anybody, the president can launch prosecution against the prime minister and scuttle the functioning of the government of India, at one stroke. <br /><br />While under prosecution, a prime minister need not resign, but how can a prime minister in the dock of a court govern the country?<br /><br />A paralysed government of India will be an ungoverning government, and so no government at all, as the Nixon presidency lay moribund under the Watergate hammer blows. A prime minister or chief minister is in office to lead the government of the country or a state and not to test the validity of his office under municipal laws.<br /><br />The demagogue and the idealist will ask what is the other option for the people to respond when a chief minister and a prime minister is corrupt? The real and punitive response shall be their overthrow in the next ballot.<br /><br />A prime minister or a chief minister, charged with a non-bailable offence can be remanded to prison too, and how can he run the administration from the prison cell? Of course it will be a spectacular democratic drama to witness the ruling chief minister lying in a prison cell and ruling the state hand-cuffed!<br /><br />If the chief minister gives nod to prosecute a member of the cabinet, there is no harm as he can remove that minister and appoint another in his place. But what about a chief minister who leads the pack, who will not resign and will not and need not give place to any substitute as he is not constitutionally compelled to do so? Is the administration of the state more important or the corruption charges?<br /><br />India has to make a new law that the prime minister or the chief minister cannot be prosecuted while in office and any prosecution has to wait till he quits office or he is forced to quit. This is to save the administration.<br /><br />Governor Bhardwaj’s utterances before and after the sanction speaks of his ire and malice against the chief minister and based on these words of malice alone the sanction order appears to be coloured. President of India and governor have to act on the advice of the council of ministers, and any change from that track will only destabilise the state structure.<br /><br />It was well known that the American courts were blatantly anti-Nixon, but they too were cautious enough to say that a president in office cannot be drawn into court, and so they declared Nixon only an ‘un-indicted co-conspirator’ in the Watergate scandal.<br /><em><br />(The writer is a retired judge)</em></p>
