JOIN USDon't shoot the messenger
Karnataka shows that the Bharatiya Janata Party is indeed a party with a difference. It is truly a party with a different chal, different charitra and different chehra. And the most visible and outstanding manifestation of this can be seen in Karnataka. The BJP has brazenly supported corruption, land mafia and mineral mafia in the State.
The aforesaid political context cannot be forgotten when we deal with the legal aspects of Governor H R Bhardwaj’s recent action of sanctioning prosecution of Chief Minister B S Yeddyurappa under section 19 (1) of Prevention of Corruption Act 1988 and Under Section 197 of the Criminal Procedure Code 1973.
Legally, following aspects are important. Firstly, can a Governor grant sanctions for prosecution of Chief Minister? The answer is a clear and an emphatic yes. There are precedents galore. In Tamil Nadu, the then Governor N Chenna Reddy had in April 1995 sanctioned prosecution of the then Chief Minister J Jayalalitha. The then Governor of Bihar, A R Kidwai, sanctioned the prosecution of the then Chief Minister Lalu Prasad in June 1997. In Maharashtra too, there is an instance of a Governor sanctioning prosecution of a former Chief Minister.
Secondly, apart from factual precedents, is this legally permissible? Again, the answer is an emphatic yes. It has been made clear by the relatively recent Supreme Court judgment in the case of Madhya Pradesh Special Police Establishment versus State of Madhya Pradesh, in which the apex court upheld the then Governor of Madhya Pradesh Bhai Mahavir’s decision to overrule the advice of the Council of Minister and grant sanction to prosecute two ministers.
Thirdly, is the Governor in granting sanction for prosecution of Chief Minister or Ministers, bound by the advice of the Council of Ministers of the State? Again the answer is an emphatic no, as has been conclusively settled by the Supreme Court judgment in the R S Naik case, in which the apex court held that sanction to prosecute the Chief Minister was the exclusive function of the Governor to be exercised by him in his discretion.
Fourthly, there are well known exceptions to the normal rule that President and Governor are bound by the advice of the Council of Ministers. For example, when the Government is in minority, such advices are not binding. Besides, there are certain matters in which the President and Governor can take decision on individual discretion, and not on the advice of the Council of Ministers.
Fifthly, the Governor apparently granted sanction after almost a month of examination of a representation, which came with a huge amount of documents that was in public domain for several months. That material in public domain has full detail and obviously the constitutional authority thought it fit and sufficient to come to a conclusion, not about guilt – which is not required – but about the reasonable probability of illegality justifying the grant of sanction.
Sixthly, Chief Minister Yeddyurappa can challenge the Governor’s decision in a court of law. But the BJP is deliberately trying to give it a political colour and criticising the Congress. The BJP in fact does not want to risk an adverse court order.
Seventhly, there is no rule that a sanction cannot be granted prior to filing of charge-sheet or without first referring the matter to the Cabinet. There is no cast iron rule about the procedure in such matters. These are all in the discretionary domain of the Governor. His power to grant sanction is undeniable.
(As told to Anirban Bhaumik)
Mr Singhvi is the spokesperson of the Congress party