NO doubt a Governor in India, being the appointing authority of Ministers has constitutional powers as well as duty to sanction prosecution of his Ministers including Chief Minister, and, in sanctioning prosecution he is not bound by the recommendations of his Cabinet on this matter but he is law bound to exercise this power objectively and fairly without any malice or malafide as per procedures and practices laid down by law and always consistent with the sacrosanct principles of natural justice. Courts have always held void such decisions of appointing authorities which were found to be in breach of the principles of natural justice.
From the statements of BS Yeddyurappa, Chief Minister and the press communiqué issued by Governor’s office it is clear that in giving sanction on Friday January 21, 2011 for prosecution of Chief Minister Yeddyurappa and his Home Minister, Governor Hans Raj Bhardwaj has breached the principles of Natural Justice as in his indecent haste Bhardwaj rushed to condemn them unheard and ex-parte.
Referring to the complaint petitions filed by the two advocates, Sirajin Basha and KN Balaraj, (based on which the Governor gave his sanction) Yeddyurappa, the Chief Minister has repeatedly asserted, “The Governor neither bothered to give me a copy of the complainants’ petitions nor an opportunity to explain my point of view.”
Yeddyurappa has also claimed that the Governor refused to provide a copy of his sanction order to the Principal Secretary to the Chief Minister on Friday but yielded to a request by a group of Ministers who called on him on Saturday. (The Hindu Jan 23, 2011). It is statutory duty of all disciplinary authorities to suo motu provide copies of all complaints, evidences and its orders to all accused which Governor Bhardwaj clearly failed to comply with.
The communiqué issued by Governor’s office in the night of Friday [January 21, 2011] does support this contention of Yeddyurappa as there is no mention in the communiqué whether accused Ministers were given any reasonable opportunity before the Governor reached at his decision holding ministers prima facie guilty of allegations made against them by private citizens.
The Raj Bhavan communiqué issued on Friday night reads: “The petition given by two advocates of Bengaluru Shri Sirajin Basha and Shri KN Balaraj on 28.12.2010, requesting for sanction of His Excellency the Governor of Karnataka under Section 19(1) of the Prevention of Corruption Act 1988 and Section 197 of the Criminal Procedure Code 1973 for prosecuting the Chief Minister, Shri BS Yeddyurappa, in an appropriate court of law for various grave allegations of corruption and criminal misconduct, has been considered by His Excellency the Governor of Karnataka and he has granted the sanction to prosecute the Chief Minister, Shri BS Yeddyurappa, by an order passed by him this evening.”
So within one month of receiving private complaints HR Bhardwaj unilaterally moved to sanction prosecution but in case of corruption complaint filed by Dr Subramanian Swamy, President of Janata Party against A Raja the then Telecom Minister, Prime Minister Manmohan Singh did not give permission for a year and for delaying sanction took the plea that [i] request for seeking prosecution sanction was premature, that [ii] he [Prime Minister] was waiting for a report from the Central Bureau of Investigation [CBI], and, that, [iii] stage for consider giving sanction would come only after a magistrate took cognisance of crime and asked for sanction. Bhardwaj acted differently from Prime Minister.
In normal course on receiving any complaint from private citizens against his Ministers, the Governor is law bound by principles of natural justice first to have referred the complaint to aggrieved Ministers for their comments as no one can be condemned unheard, and, Governor ought to have taken their replies on record and into consideration before arriving at his own decision. Alternatively Bhardwaj ought to have forwarded the complaints to the office of Chief Minister Yeddyurappa as well as to the Lok Ayukta and should have waited for enquiry report of Lok Ayukta which Bhardwaj did not do.
Or, Governor ought to have forwarded all complaints pertaining to land allocations to the Justice B Padmaraj Commission which is already looking into land denotifications during the period from 1994 to November 2010 covering periods of HD Devegowda, SM Krishna, N Dharam Singh, HD Kumarswamy and Yeddyurappa. His not referring the complaints to Padmaraj Judicial Commission shows Governor’s contempt for this Commission as well as malafide on part of Governor.
The Courts may set aside this sanction order of Governor Bhardwaj as bad in law if it is shown that Governor exercised this power arbitrarily without hearing the aggrieved Ministers before arriving at his decision to sanction prosecution.
As we know the President of India is the appointing authority for Ministers and a number of officers but even he cannot suo motu sanction prosecution of any one without first getting an enquiry conducted in which person accused has to be given two tier opportunity to be heard and cross examine witnesses/persons deposing against him.
Also there is already one Commission looking into similar land allocations made by previous Chief Ministers so it was incumbent upon Bhardwaj to have waited for report of this Commission. But Bhardwaj was in some haste to dump Yeddyurappa unheard.
Nitin Gadkari, National President of BJP rightly accused the Governor of ignoring similar actions by Shri Yeddyurappa’s predecessors and thus Governor’s action being “politically motivated.” “Before Yeddyurappa, Kumaraswamy, Dharam Singh and SM Krishna exercised this power two times, three times, four times,” he said. “The Governor has never taken any single action against former Chief Ministers because they belonged to the Congress party.”
It is known that Chief ministers of other states also make similar allotments of land under their discretionary powers.
It is most unfortunate that Union ministers P Chidambaram and Veerappa Moily and Congress spokesman Abhishek Manu Singhavi have rushed to defend this legally unsound decision of Governor to condemn Karnataka Ministers unheard, to condemn someone without due process of law. This behaviour of Bhardwaj and his defence by Congress Ministers reminds one of Emergency regime imposed by Indira Gandhi in the seventies when any citizen could be condemned unheard and courts would look the other way.
Union Home Minister Chidambaram, “It is not the first time that a Governor has given sanction to prosecute a CM or a Minister of the State Government. The law in this respect is clear and well-settled… I would invite the BJP’s attention to the statement made by Justice (Retd) Santosh Hegde, Lokayukta of Karnataka, who has observed that the Governor had the jurisdiction to grant sanction.”
He further said, “The leading case in this behalf is that of MP Special Police Establishment Vs. State of Madhya Pradesh. That was a case in which the then Governor of Madhya Pradesh, Bhai Mahavir, overruled the advice of the Cabinet and granted sanction to prosecute two Ministers. A five-judge bench of the Supreme Court upheld the order of the Governor.” But this Bench of Supreme Court did not say to dump the principles of natural justice, he said.
Senior BJP leader Arun Jaitley rightly contested Home Minister P Chidambaram and Karnataka Lokayukta Santosh Hegde’s justification of the Governor’s action, saying that as per legal precedents the Governor should have waited for the ongoing investigations to be completed. Maintaining that Bhardwaj jumped the gun in according the sanction without allowing the investigation to complete, Jaitley said that if this practice increased, “it will be very easy for the Union Government to destabilise State Governments”.
The BJP’s top brass has rightly endorsed Yeddyurappa’s decision not to quit because of Raj Bhavan’s “politically motivated” action which is violative of principles of natural justice too, thus, is liable to be set aside by a court of law. The BJP Governments should further improve functionings of their information departments so as to keep public better informed of facts as well as their achievements.Routine style won’t do any more.