Karnataka Chief Minister Siddaramaiah and Governor Thawarchand Gehlot. Photo credit: The Hindu
Law and politics are intricately intertwined. The problems arising from Karnataka Governor Thawarchand Gehlot’s permission to prosecute Chief Minister Siddaramaiah for alleged irregularities in land allocation by the Mysore Urban Development Authority are a good example. The law regarding the Governor’s permission to prosecute a sitting Chief Minister is laid down not only by statutory provisions but also by a series of court decisions. In the present political climate, where the incumbent at Raj Bhavan is seen to serve the political interests of the ruling party at the Centre, it is difficult to view the actions of the Governor, which have far-reaching implications, as decisions entirely free from political bias. However, their actions may be justified in a legal context on the basis of facts and precedents.
The question of whether the Governor can give permission to prosecute a Chief Minister on his own discretion and not on the aid or advice of the Council of Ministers has only been raised in a few cases. In the matter of the prosecution of former Maharashtra Chief Minister AR Anturay, a two-judge Supreme Court bench in 1982 upheld the Governor’s discretion: “…if it becomes necessary to prosecute the Chief Minister, the Governor…will, of course, act on his own discretion and not on the advice of the Council of Ministers”. However, the order was based on a concession made by the state government to the court. The Supreme Court did not allow any withdrawal from the concession.
The precedent cited by Governor Gehlot in his order, Maharashtra Special Police Agency v. State of Madhya Pradesh (2004), is the closest authority on the issue, but it concerned two ministers and not the Chief Minister. As in Gehlot-Siddaramaiah case, the Madhya Pradesh Cabinet had refused to approve the prosecution of the two ministers at the time, but the Governor found there was sufficient material to prosecute. A five-judge constitution bench of the Supreme Court upheld the Governor’s decision and set aside the Council of Ministers’ refusal to approve. If the Governor does not act at his discretion, given the facts and circumstances, the bench said, “the rule of law completely breaks down and it becomes possible for the Government to refuse approval despite overwhelming material showing that there is clear evidence”. The panel warned that “democracy itself is at risk” if approval to prosecute “senior public officials” in such cases is denied or withheld.
The first decision to prosecute a sitting Chief Minister was in 1995 with regard to Tamil Nadu Governor Mari Channa Reddy and Chief Minister Jayalalithaa. Subramanian Swamy, who was then heading the Janata Party, obtained permission from Governor Reddy to prosecute Jayalalithaa on two corruption charges on 25 March 1995. A Division Bench of the Madras High Court dismissed her challenge to the sanction order on the grounds that the Governor had immunity under Article 361, which provides that she is not accountable to any court in respect of her office. Unfortunately, the crucial question of law raised by Jayalalithaa before the Supreme Court was never decided. The issue was whether the Governor should act on her own discretion in seeking permission to prosecute a Chief Minister 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 after she was acquitted in both the TANSI land deal case and the coal import case, two charges against which the Governor had pleaded guilty.
Bihar Governor AR Kidwai’s permission to the CBI to prosecute Laloo Prasad and HR Bharadwaj’s permission to prosecute BS Yediyurappa against a private complainant are two well-known examples of Governors passing adverse orders against sitting Chief Ministers. The 2011 sanction order against Yediyurappa was set aside by the Karnataka High Court in November 2015 on the grounds that the reasons for granting sanction had not been argued. In that case too, the Chief Minister had drawn the attention of the Governor to the Council of Ministers’ resolution not to grant sanction. The common thread in the cases involving Madhya Pradesh Ministers Yediyurappa and Siddaramaiah is that the Council of Ministers was against granting sanction and the Governor was in favour.
The Karnataka High Court had said that the complaint was of a personal nature and therefore “utmost care, prudence and proper application of sanction was required”. It also took note of the “uneasy relationship” between the Chief Minister and the Governor. If a request had been made after the investigation, the Governor would have had material to consider. “With due respect, the care which should have been exercised is lacking in this case”. The Supreme Court had dismissed the appeal against the High Court order as the Governor, who was asked to reconsider the sanction order, subsequently refused to do so.
In Siddaramaiah’s case, the plaintiffs and political parties supporting his prosecution are likely to rely on the Supreme Court’s ruling in the Madhya Pradesh case, which effectively gave the Governor veto power over the Council of Ministers if physical evidence was ignored to thwart a legitimate prosecution. The Governor himself not only cited the MP case but also declared in his order that he had independently examined the petition and the supporting documents. Meanwhile, Siddaramaiah, who has refused to resign, is likely to take the view that the sanction order was politically motivated and placed undue reliance on the opinion of a private citizen without any investigation.
