MATHIHALLI MADAN MOHAN writes from Hubli: A protracted legal battle, especially over the issue of the discretionary powers enjoyed by the governor, appears likely to be the most important fallout of the spat between H.R. Bharadwaj and B.S. Yediyurappa, over the sanction of prosecution of the chief minister.
Of secondary importance is the impact of the governor’s action on the political equations in the State in general, and the propriety of the CM continuing in office despite the go-ahead for prosecution in particular.
From all available indications, Yediyurappa is unlikely to oblige his detractors and prefers going down fighting rather than throwing in the towel. 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.
The discretionary powers enjoyed by the governor is a grey area, which still needs to be fine tuned through judicial interpretation, like Article 356 of the Constitution (on imposing President’s rule) was done by the Supreme Court in the S.R. Bommai case.
Under the present frame of things, the governor enjoys two kinds of discretionary powers, namely the one given by the Constitution under Article 163, and the others given under the relevant statutes including section 197 of the Criminal Procedure Code (for sanctioning of prosecution).
While the former has been clearly defined, the latter has some areas of doubt on the question of whether the discretionary power enjoyed by the governor is individual, or whether he is bound by the advice of the council of ministers.
There have been three important rulings of the apex court in this connection: a 1974 judgment in the case of dismissal of two judicial officers of the Punjab government; a 1982 case of a special leave petition (SLP) filed in connection with the prosecution of then Maharashtra chief minister A.R. Antulay; and a 2004 case of prosecution of two ministers of the Madhya Pradesh government.
What stands out in the three judicial pronouncements is that the governor has to necessarily act on the advice of the council of ministers.
The question of the governor exercising individual discretion comes only in the rarest of rare cases and in cases involving the choice of the chief minister or the dismissal of a government which refuses to resign after losing majority and the dissolution of the house.
Justice P.N. Bhagwati and Justice V.R. Krishna Iyer, who were members of the seven-judge bench, had something more to add while concurring with the other judges:
“The President, like the King, has not merely been constitutionally romanticised but actually has been given a 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…[and] should avoid getting involved in politics.”
In the case of Antulay, a two-member SC bench led by Justice Chinnappa Reddy noted that the discretionary powers exercised by the governor (in sanctioning the prosecution of the CM) 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,” said the bench, and expressed its satisfaction that concession given by the attorney-general was to advance the cause of justice. But it made amply clear that this applied to this particular case only.
As for the sanction of prosecution of the Madhya Pradesh ministers, the Supreme Court upheld the governor’s decision in view of the bias, inherent or manifest, in the cabinet decision.
It is this 2004 judgment on which the Karnataka governor has relied while giving permission for the prosecution of the B.S. Yediyurappa.
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 Lok Ayukta report on the charges made against the two ministers to act upon.
But in Karnataka, the lawyer’s petition seeking the sanction went straight to the governor, and the governor conceded to the request even when the matter was pending investigation with the Lok Ayukta and the judicial commission especially appointed for the purpose.
The Karnataka episode has thrown up another new problem: what validity should the discretion exercised carry when the governor’s action is perceived as biased/ prejudiced/ or one sided?
The BJP has a long list to prove its charge of bias and its spokesmen, including the chief minister, have been harping on this aspect. This may also be put up for judicial scrutiny.
As far as the impact of the current imbroglio on political equations in Karnataka, the answer is simple. Nothing worthwhile is expected to happen. No doubt Yediyurappa and the BJP are terribly embarrassed. But Yediyurappa is a person who will not easily give up office and so won’t his party.
However, it must be said that The problems faced by the BJP are its own creation. It has needlessly provoked the governor.
The BJP should have been careful in its dealings the moment a longtime Congress loyalist like Bharadwaj, who is known to have no scruples in serving party interests in whatever capacity he is holding, was sent as governor.
But it did not so and is now paying the price for its indiscretion and lack of sophistication in dealing with the governor. The relations between the governor and the government have never been on even keel at any time and both have stoked the fire of mutual animosity and acrimony and find themselves caught in a cleft stick.
The governor, in the name of exercising caution, has cornered them.
Going by the names figuring in the complaint, on the basis of which the sanction to prosecute Yediyurappa was given by the governor, it is clear that it is his family members rather than party functionaries or dissidents, who have landed him in trouble.
This was the point which the BJP leader in charge of the State, Arun Jaitley, had reportedly made to upbraid Yediyurappa’s son B.Y. Raghavendra at the height of its last crisis to save the CM’s chair two months ago. The remarks by the BJP president Nitin Gadkari that the actions of Yediyurappa “may be immoral and not illegal” have only added spice to the same.
But with all this, the BJP finds itself in a politically advantageous position. This is because the denouement smacks of political bias. The governor has acted unilaterally in acting on the allegations hurled at the CM repeatedly by the opposition JDS and kowtowed to by the Congress, without giving a hearing to the concerned.
Nothing under the circumstances prevents Yediyurappa from launching a political campaign to proclaim that it is all a pre-planned conspiracy to unseat him. He may stomp round Karnataka narrating the sob story of his continued persecution by his detractors, who are envious of his success and want to undo the mandate given by the people, in the same manner he had when H.D. 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 1989 general elections in the wake of the campaign against the Bofors payoffs.
Secondly the BJP’s image remains high 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 better than its rivals, who have been 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 Lok Ayukta court.
Yediyurappa is not obliged to resign merely because the governor has sanctioned his prosecution. He is the company of his peers like L.K. Advani, who continued in office despite a chargesheet filed in an Uttar Pradesh court in connection with the demolition of Babri Masjid.
Yediyurappa may have a long legal fight on his hands 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 the issue to the people by calling for a bandh. 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.
What happens to the common man in the process is not difficult to guess.
(Mathihalli Madan Mohan (in picture, top) is a former special correspondent of The Hindu)
Photograph: Chief minister B.S. Yediyurappa at Netaji Subhash Chandra Bose‘s birthday celebrations, in Bangalore on Sunday (Karnataka Photo News)