Why Yediyurappa is on a strong wicket (for now)

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)

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19 Responses to “Why Yediyurappa is on a strong wicket (for now)”

  1. dr ramesh Says:

    sir with due respect to your age,experience and intelligence i have to say that ur analysis is like a desperate plea of a disillusioned bjp-rss loyalist. corruption has no caste or creed , so corruption by a lingayat or brahmin is eqully punishable. problem is the CHEDDI mindset which makes some people think that they can get away with corruption because of their religious association. governor bharadwaj has shown the real power our constitution has given to governor which can improve functioning of state govts. bharadwaj is the best governor karnataka has seen in the last two decades.

  2. sunil Says:

    Prima facia to any common man, let alone governor, it looks Yeddy has made a mistake. Guilty has to be punished, no matter if he is a CM or PM.

  3. Doddi Buddi Says:

    Dr. Rameshappa,

    I understand your viewpoint. Can you tell me how Dirty Devegowda and Sons have amassed so much wealth in such a short time? Really, I am interested in your analysis. Thanks.

  4. Common man Says:

    @ doddi buddi – If you want to know how Devegowda amassed so much wealth go and find out the way it should be done. I see in Ramesh comments he has not mentioned that Devegowda is a saint. I want to ask you one thing why are you behaving like a ill matured person. Atlast people are getting faith in the system of governance that there is a way to prosecute people in high position. I am happy this is starting from our state Karnataka and Yeddy should be punished. We should be proud of the lawyers who took the initiative of fighting democracy in a legal way. And about the article from Madan mohan it seems that guy is biased to one section of people. getting 12 ZP doesn’t mean whole people of Karnataka is with BJP. Karnataka is not a property of one particular community or leader.

  5. Sanjeeva Says:

    Dr Ramesh, Thanks for throwing so much of light on corruption of cheddis and your valuable opinion about corruption by different castes. What do you have to say about corruption by gandhi topiwallas and green shawl-wallas? You would say they have a right to indulge in amassing wealth!?? No wonder, we the people deserve all these politicians.

  6. Vinayak Says:

    To all you people arguing about the different political parties, show me one of them that is not corrupt in varying degrees.

  7. Nastika Says:

    @Sanjeeva, @Doddi Buddi:
    How about collecting evidence & filing a case against DG & Sons?

    I am glad that somebody has taken the initiative against a corrupt person (BSY in this case).

    Note: BSY mentioned in the assembly that he has a file with evidence of corruption against DG & Sons. Hope he shares the evidence so that a case can be filed against DG & Sons and anybody involved in corruption.

  8. Goldstar Says:

    They way Yeddi stumbles from one crisis to another and keeps surviving he actually redefines the term “sticky wicket”. He sticks to his post, come what may :-) .

  9. Simple Says:

    Finally, here is a governor, who has proved he is no rubber stamp. When thick skinned ministers do everything to scuttle probe of Lok Ayukta, what else can the governor do when massive corruption happens under his very nose?

    Last time, BSY went to town playing the betrayal card – also there was no corruption taint against him.

    This time, if BSY tries the same sympathy trick with the people of my state, he will be shown the door

  10. DailyBread Says:

    Hans chale kavve ka chaal Bhardwaj is on a dangerous slippery slope. This will create anarchy in the country. Any two penny lawyer can go to Governors and seek permission to prosecute CM, Ministers of the state. What happens when this is done in all states…..

  11. mounaprasad Says:

    It is a shame BSY is willy nilly clinging on to his post. If he has any shame he should forthwith resign and pave way for some one with a clean background to take over the CM post. Another, thing, he can also take with him the following tainted people in the ministry

    1. Shoba K
    2. Runkacharya alias Nurse Renuka Jayalakshmi
    3. P Ashok
    4. Katta Subramanya Naidu (if he is still in the cabinet).

    ***

    after this the Governor Bharadwaj should be recalled by the president and new Governor who does not play party politics needs to sent to Karntaka.

  12. Ventripotent Says:

    If it was left to the governer to decide who runs the sate, then why the hell have elections?

    Respect to the deep analysis of the article.

    Dr. Ramesh is wrong to bring in a caste or an organizational affiliation to this discussion when no such thing was explicitly discussed in the article.. shows his “kacha mindset” ??? or some deep seated insecurity.

  13. mussanje maatu Says:

    @daily bread – I think the BJP people might have fed you with life time bread so you are commenting in that manner. First of all, I would like to tell you the two penny lawyers have been placed at high regard by people of Karnataka(except BJP supporters) for fighting against Corruption. This might be the start of something big in future. as you have mentioned if this happens in every state ,India will become Cleaner. I wish this should happen in every state.

  14. dr ramesh Says:

    true, corruption was there in the system during congress, janata dal govts ,but the diference now is bjp govt is using caste to justify corruption. not once did deve goda use his caste to fight political allegations which were levelled against him. he behaved with great dignity during no confidence vote in parliament in 1996. contrast look at the way yeddy,eeshwarappa,dhananjay kumar are behaving in public. SHARANARU adviced kayakave kailasa
    bjp is saying kaasu iddone boss u.

  15. Simple Says:

    Dailybread

    Let me tell you what is dangerous.

    1. Looting the country brazenly.
    2. Denying that you looted.
    3. And, continue to loot under full public view
    4. Scuttle all kinds of probe against you. Scuttle Lok Ayukta, threaten governor, blackmail high-command, suspend opposition MLAs, Buy opposition MLAs, expel your own party MLAs.
    5. All the above four under the benign, helpless gaze of the party high command.
    6. Shout, scream that you did no wrong, when there is documentary evidence that you are wrong on two dozen counts.

    Thankfully there are checks and balances in my country – which allows even ordinary people to file a case against the most powerful.

    Daily bread you must remember that.
    If the case had no merit, the court would dismiss it as frivolous and penalise the people who file the cases – as it has happened in many PILs.

  16. DailyBread Says:

    Mussanje Maatu,

    Lesson no. 1: Political parties feed their full time workers/henchmen/hangers on, not people like us. Lesson no.2: Comments here need not be always from political workers.

    PS: Are you one of those two penny lawyers/henchmen, why are you taking my comments personally.

  17. DailyBread Says:

    Simple,

    >1. Looting the country brazenly.
    2. Denying that you looted.
    3. And, continue to loot under full public view
    4. Scuttle all kinds of probe against you.

    Are you talking about freshly minted new Congress of Prince, Queen mother & Regent. However, I don’t see anything wrong in these 4 actions of UPA.

    >6. Shout, scream that you did no wrong, when there is documentary evidence that you are wrong on two dozen counts.

    You mean like Sibal Kapil, why are you against him?

    >threaten governor, blackmail high-command, suspend opposition MLAs, Buy opposition MLAs, expel your own party MLAs.5. All the above four under the benign, helpless gaze of the party high command.

    Last time a certain cheddy by name Shankar Singh Vaghela did all this as an elected CM of a disgraceful/communal state, he was sprinkled with gangajal and inducted into union cabinet by MMS. Like Vaghela, Yeddy knows that he can cock a snook at BJP high command and join congress with his supporters the day he is asked to step down.

    >Thankfully there are checks and balances in my country

    Good to hear that, BTW which is your country?

  18. Simple Says:

    Dailybread

    Elections in karnataka are on the horizon. Are you a BJP ticket seeker because you seem hell bent to stodgily defend the vile acts of this state govt?

    . Under sustained media pressure, Raja, Chavan and gang got the boot for their corrupt misdeeds.

    Under sustained media pressure, BJP becomes more and more brazen and defiant. it forgives all the corrupt deeds of Yeddy and Reddy.

    This is dangerous for the country.

    It is setting a bad precedent – it encourages ministers to be corrupt to the core – knowing fully well that their low command will support them wholeheartedly. And in case, the media catches any minister red handed, he will brazen it out and say he did nothing wrong and continue to do wrong – leading the country to anarchy,

    And people like you, Daily bread are contributing to this anarchy by posting comments supporting the party whose ticket you are seeking.

    Since I am not a Congress member or a Congress ticket aspirant, I condemn all corrupt acts of Congress – and I want law to take the most stringent action against them. Kalmadi should face the music – so should Raja.

    I want to same stringent action for all corrupt BJP guys. But when BJP low command openly supports, encourages corruption, this is taking things to precariously anarchic levels.

    Gadkari himself has publicly declared that his party supports immoral activities. This is a dangerous for the country. A national party president is actually saying that his party members should be thoroughly immoral and corrupt to run this country.

    In Contrast, Congress boots out corrupt people.

    That.

    That is why I say that Congress is better than BJP any day

  19. DailyBread Says:

    Simple,

    I am not seeking any ticket from any political party, however I am the biggest supporter of prosperity, including prosperity of politicians.

    Man, why don’t you read my posts properly. I was supporting the massive loot carried out by UPA and I was only trying tell you that this guy(Yeddy) with his loot can be part of your group very shortly. Kereya neerannu kerege chelli and all that……

    I was only pointing out that Hansraj Bhardwaj will upset the applecart and set a dangerous precedent. What will poor MMS tell the supreme court about his inaction for 20 months in Raja’s case. I am on your side, but with your blind hatred you miss the big picture.

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