The final verdict in the MUDA case on alleged land allotment scam involving Karnataka Chief Minister Siddaramaiah, could be a landmark judgment that redefines the role of a governor, at a time when repeated standoffs between governors and chief ministers of non-BJP ruled states are raising questions over the practice of parliamentary democracy.
The MUDA case proceedings have exposed several grey areas in the Constitution, where the discretionary powers of governors are called in question.
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The Karnataka High Court bench headed by Justice M. Nagaprasanna concluded the process of hearing the writ petition filed by Siddaramaiah challenging the order of Governor Thaawarchand Gehlot sanctioning his prosecution, on September 12, in the Mysore Urban Development Authority land allotment case. The court has reserved the order while extending the interim stay on proceedings in the trial court till the High Court ruling.
The much-awaited verdict which would determine the political path of Siddaramaiah and the Congress government in the state, is expected to throw light on the scope of Section 17(A) of the Prevention of Corruption Act, an amendment brought in 2018 to provide protection to a public servant from frivolous and malicious litigations.
The current debate is on the bifurcation of powers of the chief minister and the governor in a parliamentary democracy.
Senior counsel Abhishek Manu Singhvi, appearing for the chief minister, argued that the principle of natural justice was not adhered to while granting sanction.
Solicitor General Tushar Mehta, representing the governor, said that at the stage of 17A there was no requirement of principles of natural justice. “Non-issuance of notice even in one case would not have caused prejudice".
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The debate highlighted the fact that the governor's power was akin to what is mentioned by Supreme Court in Lalita Kumari vs State of UP (2014), where he has to see whether a prima facie case is made out.
“Decision of the governor by way of the office he holds and considering the nature of Section 17A his reasons need not be elaborate; it must reflect application of mind,” said Mehta.
Drawing distinction between Section 17A of the Prevention of Corruption Act that pertains to enquiry/inquiry/investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties and Section 19 of the Act is on the necessity of "previous sanction" for prosecution of a public servant, Mehta said.
The governor was to “act in his own discretion” and not on the “aid and advice of the cabinet” as the chief minister himself was facing the allegation.
Mehta then referred to Rule 20 of The Karnataka Government (Transaction of Business) Rules. "Chief minister has an overarching power. He is the final authority, and it is not enough that he did not participate in the meeting of cabinet because the process requires his participation. It is he who decides whether to send it to the cabinet. Merely because he abstains from particular meeting would not meet ends of justice."
Senior advocate Prabhuling Navadagi, appearing for one of the respondents Pradeep Kumar, said the question of governor consulting the cabinet before sanctioning prosecution order against the chief ministers did not arise as the Article 163 (Constitution of India) does not bifurcate between council of ministers and the chief minister and here the allegation was against the CM.
In his rejoinder submissions, Singhvi noted that the umbrella of statutory protection was provided especially to an elected public servant, as filter to an inquiry or investigation which creates serious implications of diluting, unseating or creating a mandate contrary to the election.
“There is nothing to show the chief minister's prima facie complicity. Yet, the governor grants sanction and commits a constitutional sin by not answering the question 'why' (he is granting sanction) and instead grants by asking 'why not',” argued Singhvi, adding that if one looked at the legislative history of Section 17A, it would show that the idea of Section 17A was to provide a genuine strong filter, a protective layer for the public servant otherwise governance would come to a standstill.
The court reminded that the protective shield was not for the guilty, but a safeguard for the innocent.
Singhvi stated that initially the 17A was conceived to provide protection through the Lokayukta. “This demanded a heightened scrutiny before granting sanction. Later, the Lokayukta was replaced with the government or the police officer,” he added.
Singhvi argued that the investigating officer (in this case the governor) must first form an opinion that inquiry or investigation is warranted. So, a private complainant becomes the third party as his interference reduces the very objective of the 17A - that is to provide protection to the public servant. The law mandates the registration of a First Information Report (FIR) in cases of cognisable offences is a must.
“What should a private complainant do if the police refuse to register an FIR?,” asked the court and also added that the question of whether a private complaint can seek sanction to investigate is settled, as the law states anybody can set the criminal law in motion.
Should the governor always act on advice of cabinet?
Mehta, in his submissions, had said the cabinet advice was, in fact, a “collective non-application of the mind” as it was a “copy-paste” of the Advocate General’s opinion.
Elaborating on why the governor should not be heeding to the advice of the cabinet in this particular case, Mehta said, “Article 164 requires, that the Governor would appoint Minister on the recommendation of Chief Minister. Also, by Rule 20 of the Karnataka Government (Transaction of Business) Rules, the Chief Minister has an overarching power. He is the final authority, and it is not enough that he did not participate in the meeting of cabinet (which was chaired by deputy chief minister at CM’s behest) because the process requires his participation. It is he who decides whether to send it to the cabinet. Merely because he abstains from particular meeting would not meet ends of justice".
Mehta cited the Supreme Court's judgment in A.R. Antulay vs R.S. Nayak & Anr. (1988) and said, the court had said when it comes to sanction of chief minister the governor should independently apply his mind.
Recalling Constituent Assembly debates, Singhvi pointed out that Dr Ambedkar, on the question of having elected governors, had said there cannot be two swords in one scabbard. “There was a thought to nominate the governors as there was apprehension over anybody applying for the post as it was so non-active,” said Singhvi, to illustrate the governor post had limited powers.
“The power to grant sanction under 17A is not an independent discretionary power of the governor but an executive power ordinarily exercised on the aid and advice of the cabinet. Only in exceptions where there is overwhelming material on record on the basis of which prima facie case is clearly made out and yet the council has refused sanction. Moreover, the governor had to examine the reasons given by the cabinet. But his order does not demonstrate how the cabinet advice is irrational,” said Singhvi.
Calling out “presumptive bias of the governor against the cabinet”, Singhvi said, “The sanction order only says the cabinet is deemed to be appointed by the chief minister. But he does not give reasons why he believes there should be an inquiry, or if the CM was handling the portfolio or sign any file or give instruction that proves his complicity, before rejecting the advice of the cabinet. Any disagreement of the governor with the cabinet should reflect in the order with reasons.”
Citing Shamsher Singh vs state of Punjab case, Singvi said in case a minister or chief minister is involved, the governor's discretionary powers are automatically overridden. The Constitution says the discretionary powers are so limited and so specific. But if it is shown that in a case of sanction, the order denying or recommending sanction suffers from transparent apparent bias, it has to be demonstrated. Once the governor demonstrates that, the discretionary comes into play. In this case, the governor, in his 6-page order has made only one point that he is deciding independently and is not bound by the cabinet.”
As per the Constitution, the governor should act in harmony with the council of ministers, Singhvi added.