Prosecuting the Chief Minister

By Cleofato A Coutinho
22 January 2011 18:22 IST

A big storm is staged in Karnataka over the grant of sanction to prosecute the Chief Minister B.S. Yeddurappa under Prevention of Corruption Act.  The country is passing through a series of scams. The ones that have caught the imagination of the public is the 2G Spectrum scam and the land scam is Karnataka. The BJP, which is in the forefront of waging a war on corruption, has allowed its Chief Minister to continue based on political considerations. The Governor of Karnataka, who happens to be the former Law Minister of the Country and otherwise known to be close to the Gandhi family, has sanctioned the prosecution of B. S. Yeddurappa. The Chief Minister, who had announced a judicial enquiry by a Retd. High Court Judge appointed by himself, has received brickbats from Justice Santosh Hegde, the Karnataka Lok Ayukta over the issue.

The sanctions to prosecute the Chief Minister of Karnataka has come on a petition filed by two advocates seeking the Governor’s sanction to prosecute the Chief Minister, his sons and the Home Minister of  the state R. Ashoka. The cabinet has passed a resolution at its meeting on 19th January, urging the Governor not to grant sanction. After the grant of sanction, the local BJP unit called for a bandh and disrupted life in the State and even prior to the granting of sanction, the BJP legislators had planned a Dharana in front of Raj Bhavan. It is strange that instead of protecting law and order, the government helps disrupt life, law and order. Government cannot be a party to holding state to ransom that would tantamount to breakdown of constitutional machinery. 

The prosecution of the Chief Minster and ministers under Prevention from Corruption Act is possible only after the Governor grants sanction. That means in case the Governor does not grants the sanction, the Chief Ministers and the ministers cannot be prosecuted. Normally the Governor is advised by the Chief Minister and his Council of Ministers. The Governor otherwise goes by the advice given to him by the Council of Ministers. But is he entitled to act on his own and in his discretion in the matter of sanction to prosecute the Chief Minister and the ministers? This is a question that is being raised in Karnataka by the party, which has always claimed to be the party with a difference.

Will any Chief Minister or a cabinet headed by him pass a resolution permitting the Governor to prosecute the Chief Minister or a member of a cabinet? In our system, partisan and political consideration always crops up and the launch of prosecution normally means death knell by the government. In such a situation, it is obvious that the Governor shall act in his discretion i.e. he shall go by his own conscience. Even otherwise the Governor has discretionary powers under Art. 163 of the Constitution of India.  The Lok Ayukta of Karnataka Justice Santosh Hedge has hit the nail at the right place by openly claiming that the Governor was well within his powers to sanction the prosecution of the Chief Minister.

Many years back, a BJP corporator Ramdas Nayak sought prosecution of A.R. Antulay, the then Congress Chief  Minister of  Maharashtra, charging him with the commission of offences punishable under 161 and 185 of the Indian Penal Code and Section 5 of the Prevention of Corruption Act. The allegation was that A.R. Antulay collected contributions and donations for the benefit of the trusts controlled by him by misusing his position and power. The prosecution of A.R. Antulay without the sanction of the Governor was held bad.

The BJP corporator moved the Bombay High Court and a division bench of Justice Gadgil and Justice Kotwal held that request for sanction must not be decided by the law minister or any other minister. The division bench of the Bombay High Court was clear in its view: “it deserves to be decided by the Governor in his individual discretion”. The Government of Maharashtra, though it was not aggrieved by the order of dismissal of Ramdas Nayak petition, challenged the view of the Bombay High court before the Supreme Court. It was the government of Maharashtra contention holding that it was not for the Courts to decide in respect of the particular matter of whether the Governor should act within his discretion or with the aid of Council of Ministers. The Hon’ble Supreme Court held in deciding to sanction or not to sanction the prosecution of the Chief Minister, the Governor would act in the exercise of discretion and not with the advice of Council of Ministers.

To my mind the issue of sanction to prosecute the Chief Minister being within governor’s own discretion was settled. Any other view shall only be obnoxious and it will only give a feeling that the Chief Minister and the ministers are beyond the rule of law since there can be no prosecution without sanction.

In case the Governor does not accord sanction, the High court is normally moved to direct the Governor. But in case the Governor grants sanction to say that Governor ought to have gone by the cabinet advice is totally unacceptable. But whether there is enough material for the Governor to accord sanction may be a matter to be decided by the High court or the Supreme Court or whether the issue is beyond judicial scrutiny is for the higher courts to decide.

There can be no doubt that the Governor’s activist and discretionary role ought to be minimized when the chief minister of the state is a popularly elected person as against the nominated position of the Governor. However some healthy conventions ought to be permitted to be evolved and power to grant sanction by no stretch of imagination could be left in the hands of the cabinet to decide as no Chief Minister shall even sign summons to himself to sit on the accused bench in the criminal court. 

 

 

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Cleofato A Coutinho

Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.

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Previous Comments

It would be kind of circular or redundant- a catch-22 situation- if the Governor would not be allowed to use his discretionary powers unless recommended by the Cabinet like in the usual format for other decisions of the government.

- Ludovico, Old-Goa | 24 th January 2011 18:14

 

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