A protracted legal battle of sorts especially over the issue of the discretionary powers enjoyed by the Governor appears to be in the offing.
This by far, has been the most important fall out of the present spat between the Governor and the Chief Minister of Karnataka, which has resulted in the Governor sanctioning prosecution of the Chief Minister.
Of secondary importance would be the its impact on changing of political equations in Karnataka in general and the propriety of the Chief Minister continuing in office as a consequence in particular. From all indications available, Mr. Yeddyurappa, is unlikely to oblige and prefer going down fighting rather than to thrown in the towel in the middle. As a matter of fact, he finds himself in an advantageous position, much to the chagrin of those who have planned and executed this move. About this later on.
The discretion enjoyed by the Governor is a grey area, which still needs to be fine tuned through judicial interpretation like the manner in which the article 356 of the Constitution has been done by the apex court in Bomma’is case.
The Governor , under the present frame of things enjoys two kinds of discretionary powers, namely the one given by the Constitution under Art. 163 and the others given under the relevant statutes including the section 197 of the Cr.P.C (for sanctioning of the prosecution). While the first one has been clearly defined , the second one leaves some areas of doubts, on the question whether the discretionary power enjoyed by the Governor is individual or bound by the advice of the council of ministers.
There have been three important rulings of Supreme Court in this connection, namely, a 1974 judgment in the case of dismissal of two judicial officers of the Punjab government, a 1982 case of SLP filed in the connection of the case of prosecution of Mr. Antulay the Maharashtra Chief Minister and a 2004 case of prosecution of the two ministers of Madhya Pradesh government.
What stands out in the three judicial pronouncements are is that the Governor has to necessarily action the aid and advice of the council of ministers. The question of the Governor exercising individual discretion comes in rarest of the rare cases and in cases involving the choice of the chief minister, dismissal of a government, which refuses to resign after losing majority and the dissolution of the house.
Mr. Justice Bhagavati and Justice V R Krishna Iyer who were the members of the seven member bench had something more to add while concurring with others judges: “President like the King has not merely been constitutionally romanticized but actually has been given pervasive and persuasive role. While he plays such a role, he is not a rival centre of power in any sense and must abide by and act on the advice tendered by his ministers except in narrow territory, which is sometimes slippery…… should avoid getting involved in politics… ”.
In the case of the former Maharashtra Chief Minister Mr. Antulay a two member bench of the Supreme Court led by Mr Justice Chinnappa Reddy noted that the discretionary powers exercised by the Governor (in sanctioning prosecution of the Chief Minister) arose out of the concession made at the High Court by the Attorney General, who had appeared for the respondents. “The Governor while determining whether sanction should be granted or not , as a matter of propriety necessarily acted on his own discretion and not on the advice of the Council of Ministers” and expressed its satisfaction that concession given by the Attorney General was to advance the cause of justice.” But made it amply clear that this applied to this particular case only.
There is 2004 judgment of the Supreme Court upheld the sanction given for prosecuting two ministers of Madhya Pradesh Governor, in view of the bias inherent or manifest in the cabinet decision.
It is the 2004 judgment of the Supreme Court on which the Karnataka Governor has relied while giving permission to prosecute the Karnataka Chief Minister.
But there is an essential difference between the Madhya Pradesh and Karnataka situations. In Madhya Pradesh, the matter went to the Governor, after the cabinet had rejected the permission. And the Governor had the benefit of the Lokayukta report on the charges made against the two ministers to act on.
But in Karnataka,,the petition seeking the sanction has goes straight to the Governor. And the Governor conceded to the request, when the matter was pending investigation with the Lokayukta or the judicial commission especially appointed for the purpose.
Karnataka episode has thrown up another new problem – of what validity the discretion exercised should carry, when Governor’s action is biased/ prejudiced/ or one sided? The BJP has a long list proving charge of bias and its spokesmen including the Chief Minister have been harping on this aspect. This may be put up for judicial scrutiny.
As for the second question, its impact on political equations in Karnataka is concerned, the answer is simple. Nothing worthwhile is expected to happen. No doubt Mr. Yeddyurappa and the BJP are terribly embarrassed. But Mr. Yeddyurappa is a person who would not easily give up the office and so has been the party.
As a matter of fact, the problems faced by the BJP are its own creation. It has needlessly provoked the Governor. The BJP, which should have been careful in its dealings the moment the Congress loyalist like Mr. Bharadwaj, who is known to have no scruples to serve the party interests in whatever capacity he was holding, was sent as the Governor. But it did not so and has now been paying the price for indiscretion and lack of sophistication in dealing with Governor. The relations between the Governor and the government have never been on even keel at any time so far and both have stoked the fire of mutual animosity and acrimony and find themselves caught in a cleft stick when the Governor in the name of exercising caution has cornered them.
Going by the names figuring the in complaint on the basis of which the sanction to prosecute Mr. Yeddyurappa has been passed by the Governor, it is clear that it is the family members rather than the party functionaries or dissidents, who have landed him in trouble. This was the point, which Mr. Arun Jaitley, the BJP leader in charge of Karnataka, had reportedly made to upbraid Mr. Raghavendra, the son, of Mr. Yeddyurappa at the height of its last crisis to save the Chief Minister’s chair. The remarks by Mr. Nitin Gadkari the BJP President now in China
But with all this, the BJP finds itself in a politically advantageous position. This is because the denouement smacks of political bias. The allegations hurled at the Chief Minsiter repeatedly by the opposition JDS and kowtowed by the Congress, are the once on which the Governor has acted upon unilaterally, with giving a hearing to the concerned.
Nothing under the circumstances prevents Mr. Yeddyurappa from launching a political campaign, to say that it has all been a planned conspiracy to unseat him. He may stomp round Karnataka telling the sob story of his continued persecution by his detractors, who were envious of his success and want to undo the mandate given by the people, in the same manner he had done it when Mr. Kumaraswamy refused to hand over the reins as had been agreed upon.
This has a bright chance of success for two things. Firstly, the corruption has ceased to be an issue influencing the poll, barring the solitary exception of Rajiv Gandhi losing the poll in the wake of campaign for the Bofors payoff. . Secondly the BJPs image remains highly in the eyes of the people, as has been proved in all the elections for the different fora held ever since BJP came to power in Karnataka more than two years ago. The latest in the series has been its success in the panchayat elections. The performance of the BJP, which was practically a non starter in the realm of panchayats, has been much much better than its rivals, who are left far behind, despite a vigorous political campaign.
Moreover in general parlance, the sanction by the Governor to launch the prosecution, hardly means anything. It merely presages the starting point of a legal battle and has so many phases to be covered, for which the party is getting ready. The first step has been taken with a complaint already filed before the Lokayukta court.
Mr. Yeddyurappa is not obliged to resign merely because the Governor has sanctioned his prosecution. He is the company of his peers like Mr. Advani, who continued in office despite a charge sheet filed in an Uttar Pradesh court in connection with the demolition of Babri Masjid. Mr. Yedduyrappa may have long legal fight on hand to clear himself of the charges made but none of this warrants his resignation.
Knowing his nature he is not the one to give up the office that easily. He may refuse to resign and may dare the Governor to dismiss him if it comes to that. This would surely enable him to take his fight to the people. In this he apparently has the full backing of the party at the national level. BJP has made an opening gambit of taking issue to the people by calling for bundh. Efforts are underway to mount pressure for the withdrawal, of the Governor, which are doomed to fail going by the manner in which the Congress is backing the Governor. And what happens to the common man in the process is anybody’s guess.
Eom 23.01.11
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