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Raj Kumar Makkad (Adv P & H High Court Chandigarh)     27 January 2011

BHARDWAJ HAS ACTED AGAINST THE CONSTITUTION

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.





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 13 Replies

Arup (UNEMPLOYED)     27 January 2011

Can the Governor use his power under Article 163 without the aid and advice of the Council of Ministers?

 

- in general governor should move in line with the advice of the Council of Ministers, but where a criminal case is concerned against the chief minister or his ministers, governor is free not to hear the advices of the corrupt chief minister.

2 Like

Arup (UNEMPLOYED)     27 January 2011

in this case governor's role is fair, transparent and in the interest of democracy.

if the governor did not allow, the people may think that governor extending helping hand to the corrupt chief minister.

2 Like

Arup (UNEMPLOYED)     27 January 2011

IT IS REMARKABLE HERE THAT,

FEWDAYS BACK MR N D TIWARY RESIGNED FROM THE POST OF GOVERNOR

AGAINST SOME CORRUPTION CHARGES AGAINST HIM.

1 Like

N.K.Assumi (Advocate)     30 January 2011

If a true and honest Governor is appointed who does not care about His/her Office,  not a single Government in the state would last for a month in India.

1 Like

Arup (UNEMPLOYED)     30 January 2011

i support mr assumi.

his statements are truthful and bold.

AJAY AGGARWAL (CEO)     30 January 2011

Its the Old Characters of Congress's Governers, Remember Mr Bhandari in UP, in AP to dismise the NT'S GOVT . MOREOVER A WORLD OF FORMER PRESIDENT THAT .................(Hope U Remember the word in time of Mrs Gandhi..???????????)

Arup (UNEMPLOYED)     30 January 2011

every case is seperate and having own merits and demerits


(Guest)

BUT THE PRESENT DAY RULE IS 'THE COUNCIL OF MINISTERS MUST ACT ACCORDING TO THE ADVICE OF THE GOVERNOR", AS THE GOVERNOR MAY BE THE BELIEVER OF "CHANGE IS THE SPICE OF LIFE."

Arup (UNEMPLOYED)     04 February 2011

BUT THE PRESENT DAY RULE IS 'THE COUNCIL OF MINISTERS MUST ACT ACCORDING TO THE ADVICE OF THE GOVERNOR

- IT IS IDEAL; EXPECTED BUT NOT ALWAYS POSSIBLE.


(Guest)

Governor may be desirous of having extra-constitutional authority vested with him.

Arup (UNEMPLOYED)     04 February 2011

extra-constitutional authority!

 

-  NOT IN THIS PERTICULAR CASE.

Pradeep (Advocate)     10 February 2011

If we assume that ...high authority like the Council of Ministers will normally act in a bona fide manner, fairly, honestly and in accordance with law.. no action of council of ministers is questionable in any court of law. because they are presumed to be acted in accordance with the law.  Moreover, there is one more principle, which says, that Legislature is the best judge of public good, as judiciary is not elected by people, it cannot read the minds of the general public...

Such presumptions no more hold good, as we can see that at times these authorities have acted worse than a dictator.

If CM is clean, let it be established in the investigation. why should he create all this hue and cry ?

The rule that no one shall be condemned unheard shall apply in CMs case also. moreover, i don't understand why his party couldn't even find a suitable replacement. When hawala allegations appeared, Advani was the first to resign, when warrant was issued against Umabharati, she resigned from her post.

but as far as Yeddy is concerned, there seems to be a seperate set of rules.


(Guest)

Hi Pradeep,

If minds of the general public (members of the house) don't want to replace the Chief Minister, what their party should do?


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