IN THE CONSTITUTIONAL SCHEME OF GOVERNANCE, A GOVERNOR MUST ACT ACCORDING TO THE ADVICE OF THE COUNCIL OF MINISTERS, SAYS BHUPENDER YADAV
That the Karnataka Governor Hans Raj Bhardwaj has granted sanction for the prosecution of Chief Minister BS Yeddyurappa without the aid and advice of the Council of Ministers shows the violation of the spirit of the Constitution. The aforementioned action taken by the Governor has raised a constitutional issue: Can the Governor use his power under Article 163 without the aid and advice of the Council of Ministers?
In the present situation, it is a fact that before granting the sanction the Governor has not taken any formal advice from the Council of Ministers. Article 163 of the Constitution provides that the Governor should act upon the aid and advice of the Council of Ministers.
The question, therefore, is if the Governor is to act on the aid and advice of the Council of Ministers, is he bound to take the aid and advice of the Council of Ministers for all purposes? Is he supposed to act in the same terms even when members of the Council are themselves being prosecuted, and it is extremely difficult that the Council of Ministers would grant sanction that would jeopardise its members' future?
It is here that we should read what the Constitution Bench of the Supreme Court has laid down in MP Special Police Establishment vs State of MP (2004) 8 SCC 788.
Para 33 of the judgement reads, "Certainly, the Council of Ministers has to first consider grant of sanction. We also presume that a high authority like the Council of Ministers will normally act in a bona fide manner, fairly, honestly and in accordance with law. However, on those rare occasions where on facts the bias becomes apparent and/or the decision of the Council of Ministers is shown to be irrational and based on non-consideration of relevant factors, the Governor would be right, on the facts of that case, to act in his own discretion and grant sanction."
On perusal of the above laid principle, it becomes perceptible that unless there is an apparent bias on the part of the Council of Ministers the Governor cannot act on his own. The Governor can only use his own discretion on recording such apprehensions supported by cogent reasoning.
Therefore, the attempt of Mr Bhardwaj to quote the judgement out of context is not only specious and dangerous, but it amounts to endangering the constitutional balance so as to facilitate petty political games.
The Governor after being caught out in this devious manoeuvre attempts to quote and use a letter of the Council of Ministers asking the Governor not to grant sanction in the matter when the issues relating to them were already being investigated by the Lokayukta and Justice Padmaraj Commission. What the Governor forgets is that the Council of Ministers were not even served with the copy of the complaint filed by the Lawyer's Forum. Therefore, the Council of Ministers cannot be asked to blindly respond to a charge, since that would be clearly against all forms of natural justice and fair play.
It seems the Governor intends to elude from the legal process. However, it is worth remembering that the immunity to the Governor granted under Article 361(1) making the office of the Governor immune from being made answerable to any court of law for any act done or purported to be done or discharged by him in his official capacity does not cover mala fide actions of the Governor, accentuated by bias or acts of the Governor which are clearly outside his powers that is ultra vires.
The Supreme Court also highlights that the role of the Governor should be fair, transparent and should be in the interest of democracy. In 2006 (2) SCC case of Rameshwar Prasad vs Union of India; the Supreme Court has held, "It is not deficiency in the Constitution which is responsible for the situation. It is attributable to the people who appoint the Governors on considerations other than merit. It is a disturbing feature, and if media reports are to be believed, Raj Bhavans are increasingly turning into extension of party offices and Governors are behaving like party functionaries of a particular party. This is not healthy for democracy."
Thus in the present situation the Union Government must recall its Governor to safeguard the constitutional machineries in the State of Karnataka and in the interest of the democracy of the country.