Law and politics yield a complex mix. The issues arising out of the Karnataka Governor, Thaawarchand Gehlot, granting sanction to prosecute Chief Minister Siddaramaiah for alleged irregularities in the allotment of plots by the Mysore Urban Development Authority are a good example. The law relating to a Governor granting sanction for a serving CM’s prosecution is governed not by statutory provisions alone, but also a string of court judgments. In the current political atmosphere, in which incumbents in the Raj Bhavan are seen as serving the political interests of the ruling party at the Centre, it is difficult to consider gubernatorial acts of far-reaching import as decisions completely free from political bias. Yet, their acts, in a legal context, may be justified on the basis of fact and judicial precedent.
The question whether a Governor can accord sanction to prosecute a Chief Minister on his own discretion, rather than the aid and advice of the Council of Ministers, has been addressed only in a few cases. The question concerning the prosecution of former Maharashtra Chief Minister A.R. Antulay resulted in a judgment by a two-member Supreme Court Bench in 1982 that held in favour of the Governor’s discretion. “...when there is to be a prosecution of the Chief Minister, the Governor would ... as a matter of propriety, necessarily act in his own discretion and not on the advice of the Council of Ministers.” However, the order was based on a concession by the State government before the court. The Supreme Court refused to allow any resiling from the concession.
The precedent cited by Governor Gehlot in his order — the Maharashtra Special Police Establishment vs State of Madhya Pradesh (2004) — is the closest possible authority on the question, although it concerns two Ministers and not the CM. As in the Gehlot-Siddaramaiah instance, the Madhya Pradesh Cabinet had then refused sanction to prosecute two Ministers, while the Governor found that there was sufficient material to do so. A five-member Constitution Bench of the Supreme Court upheld the Governor’s decision and set aside the ministerial Council’s refusal to grant sanction. If, on the given facts and circumstances, the Governor were not to act in his own discretion, “there would be a complete breakdown of the rule of law, inasmuch as it would then be open for Governments to refuse sanction, in spite of overwhelming material showing that a prima facie case is made out,” it said. It cautioned that if sanction to prosecute “high functionaries” in such cases is refused or withheld, “democracy itself will be at stake”.
The earliest decision to prosecute a serving Chief Minister concerned Tamil Nadu Governor Marri Channa Reddy and Chief Minister Jayalalithaa in 1995. Subramanian Swamy, then heading the Janata Party, obtained Governor Reddy’s sanction to prosecute Jayalalithaa on March 25, 1995, on two corruption charges. A Division Bench of the Madras High Court rejected her challenge to the sanction order, citing the Governor’s immunity under Article 361 that protected him from being answerable to any court regarding his functions. Unfortunately, the crucial question of law that Jayalalithaa raised before the Supreme Court was never adjudicated. The question was whether when sanction was sought to prosecute a CM, the Governor should act in his own discretion, or on the aid and advice of the Council of Ministers excluding the Chief Minister. The matter was referred to a Constitution Bench, but Jayalalithaa withdrew her challenge in 2002, as she had by then been acquitted in both the TANSI land deal case and the coal import case, the two charges on which prosecution had been allowed by the Governor.
Bihar Governor A.R. Kidwai allowing the CBI to prosecute Lalu Prasad, and H.R. Bharadwaj according sanction to private complainants to prosecute B. S. Yediyurappa are the two well-known instances of Governors passing adverse orders against Chief Ministers in office. The 2011 sanction order against Mr. Yediyurappa was quashed by the Karnataka High Court in November 2015 on the ground that it contained no discussion on why sanction was being given. In that instance, too, the Chief Minister had drawn the Governor’s attention to a resolution of the Council of Ministers not to grant sanction. The common thread in the matters concerning the Madhya Pradesh Ministers, Mr. Yediyurappa and Mr. Siddaramaiah is that the Council of Ministers were against grant of sanction, while the Governors favoured it.
The Karnataka High Court had then observed that “great care, caution and proper application was necessary” because the complaint was private in nature. It also took note of the “uneasy relationship” between the CM and the Governor. If the request had come after an investigation, the Governor would have had materials in hand for applying his mind. “With respect, the caution that ought to have been exercised is absent in this case.” The Supreme Court disposed of the appeal against the high court’s order as the Governor, who had been asked to reconsider the sanction order, subsequently refused to give sanction.
In Mr. Siddaramaiah’s case, the complainants and political parties backing his prosecution may rely on the Supreme Court judgment in the Madhya Pradesh case that effectively gave the Governor a veto over the Council of Ministers if material evidence was ignored for the sake of blocking a legitimate prosecution. The Governor himself has not only cited the M.P. precedent, but also declared in the order that he had independently examined the petitions and the supporting documents. On the other hand, Mr. Siddaramaiah, who has refused to resign, is likely to take the view that the sanction order was actuated by political motive and gave undue credence to private persons’ views without any investigation.
