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PROSECUTION SANCTION AGAINST CM

19th August, 2024

PROSECUTION SANCTION AGAINST CM

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Picture Courtesy: https://www.thehindu.com/news/national/karnataka/if-an-investigation-indicts-siddaramaiah-governor-has-to-grant-another-sanction-for-his-prosecution/article68536742.ece

Context: Karnataka Governor Thaawarchand Gehlot’s sanctioning of Chief Minister Siddaramaiah’s prosecution highlights the complex blend of legal discretion and political considerations.

Details

  • In recent times, the relationship between Governors and Chief Ministers in India has become increasingly complex, especially when it comes to the power to grant or deny sanctions for prosecution. This tension highlights the intersection of law, politics, and governance in India.

Understanding the Sanction Process

In India, before a public servant, including a Chief Minister, can be prosecuted for alleged corruption, several legal steps must be followed.

  • Investigation Sanction: Initially, a Governor can grant sanction for an investigation into alleged misconduct. This step allows the investigating agency to examine the evidence and gather information.
      • In Siddaramaiah’s case, the Governor has sanctioned an investigation under Section 17A of the Prevention of Corruption (PC) Act, 1988.
  • Prosecution Sanction: If the investigation produces sufficient evidence, a separate sanction is required to initiate formal prosecution.
      • This is governed by Section 19 of the PC Act. It ensures that a high-ranking public servant cannot be prosecuted without the Governor’s permission after an investigation has substantiated the allegations.

The Current Case: siddaramaiah's Sanction

  • Sanction for Investigation under PC Act: Governor Gehlot has granted sanction for an investigation under Section 17A of the PC Act. This sanction allows the investigating agency to probe the allegations against Siddaramaiah. However, this does not automatically authorize prosecution.
  • Sanction Under Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023: The Governor has also granted sanction under Section 218 of the BNSS, 2023. This provision allows courts to take cognizance of alleged offences directly based on available evidence, without necessarily conducting a preliminary investigation. This adds a layer of complexity, as it could lead to prosecution under different legal frameworks.

Key Cases and Precedents

Tamil Nadu: Jayalalithaa’s Case (1995)

 

●One of the earliest cases involved Tamil Nadu Governor Marri Channa Reddy and Chief Minister Jayalalithaa.

●In 1995, the Governor granted sanction for her prosecution on corruption charges. Jayalalithaa challenged this decision, arguing that it should have been based on the aid and advice of her Council of Ministers, rather than the Governor's discretion.

●The Madras High Court upheld the Governor’s decision, but the Supreme Court never fully addressed whether the Governor should act independently or on the advice of the Council of Ministers.

●Jayalalithaa withdrew her challenge in 2002 after being acquitted of the charges.

Madhya Pradesh: Ministerial Sanction Case (2004)

●In 2004, the Supreme Court dealt with a case where the Governor of Madhya Pradesh granted sanctions to prosecute two Ministers despite the Cabinet’s refusal.

●This case is crucial because it established a precedent that the Governor could override the Cabinet if there was sufficient evidence.

●The Supreme Court supported the Governor’s decision, emphasizing that the rule of law must be upheld even if it means going against the elected government’s wishes. This precedent was set in subsequent cases, including those involving Chief Ministers.

Karnataka: siddaramaiah's Case (2023)

●Recently, Karnataka Chief Minister Siddaramaiah faced a situation where Governor Thaawarchand Gehlot granted sanction for his prosecution related to alleged irregularities in land allotments.

●Siddaramaiah and his supporters argue that this decision is politically motivated and compromises democratic processes.

●The Governor’s decision is based on the precedent set by the Madhya Pradesh case 2024.

The Role of the Governor

The Governor’s power to grant or deny prosecution sanction is rooted in legal and constitutional provisions but is often viewed through a political lens.

  • Legal Framework: The Constitution of India gives Governors certain discretionary powers, especially in situations where the advice of the Council of Ministers may be problematic or biased. This includes granting sanctions for prosecution, which ensures that high-ranking officials are held accountable even if their government is unwilling to take action.
  • Political Implications: In practice, Governors appointed by the central government may be considering the edge of the ruling party at the Centre. This understanding can lead to allegations of political bias, especially when their decisions affect state leaders from opposition parties.

Challenges and Considerations

  • Transparency and Fairness: The process of granting or denying sanction for prosecution must be transparent. If the public perceives the Governor’s actions as politically motivated, it erode trust in the system. Ensuring that decisions are based on clear evidence and legal principles, rather than political considerations, is essential.
  • Impact on Governance: Frequent conflicts between Governors and Chief Ministers can disrupt governance and affect the functioning of the state government. It’s important to balance legal responsibilities with political realities to maintain stability and effective governance.
  • Need for Reform: Some experts argue for reforms to make the process more transparent and less susceptible to political influence. This could involve clearer guidelines for Governors and more robust mechanisms for review and appeal.

GOVERNOR

  • The Indian Constitution established a parliamentary system for state governments, with Part VI focusing on the state executive. This includes the governor, chief minister, council of ministers, and advocate general.
  • The governor is the chief executive head of the state, acting as both a nominal executive head and an agent of the central government. The 7th Constitutional Amendment Act of 1956 allowed for the appointment of the same person as a governor for two or more states
  • The governor is appointed by the president by warrant under his hand and seal, the appointment is not an employment under the Central government but an independent constitutional office.
  • Qualifications for Appointing a Governor:
      • The governor should be a citizen of India and have completed the age of 35 years.
      • Two conventions have been developed in this regard: he should not belong to the state where he is appointed and the president is required to consult the chief minister of the state concerned.
  • Term and Removal: A governor holds office for a term of five years from the date on which he enters his office.
      • The term of five years is subject to the pleasure of the President and he can resign at any time.
      • The President may transfer a Governor appointed to one state to another state for the rest of the term.
      • A governor can hold office beyond his term of five years until his successor assumes charge.

Powers and Functions of the Governor

Executive Powers

 

●Formal Actions: All executive actions of the state government are taken in the Governor’s name. This is more of a formality, with the real executive powers resting with the Chief Minister and the Council of Ministers.

●Rules and Procedures: The Governor can make rules to specify how official orders and other instruments should be authenticated. This ensures proper governance and procedural clarity.

●Business Transactions: The Governor can create rules to streamline the transaction of state government business and allocate responsibilities among ministers.

●Appointments: The Governor appoints the Chief Minister and other ministers. These appointees hold office at the Governor's pleasure.

  • The Governor appoints the Tribal Welfare Minister in certain states, the Advocate General, the State Election Commissioner, and the Chairman and members of the State Public Service Commission.

●Information and Recommendations: The Governor can request information about state administration from the Chief Minister and can require the submission of certain matters for the Council of Ministers' consideration.

●Emergency Powers: The Governor can recommend the imposition of the President's Rule in a state, which grants extensive executive powers to the President and effectively dissolves the state government.

● University Affairs: The Governor acts as the Chancellor of state universities and appoints Vice-Chancellors, playing a key role in higher education administration.

Legislative Powers

●Legislative Functions: The Governor can summon or prorogue the state legislature and dissolve the legislative assembly. These powers are crucial for managing the legislative calendar and ensuring smooth governance.

●Addresses and Messages: The Governor addresses the state legislature at the beginning of each session, outlining government priorities and policies. They can also send messages regarding bills and other legislative matters.

●Presiding Officers: In the absence of the Speaker or Chairman, the Governor can appoint members to preside over the proceedings of the state legislature.

●Nominations: The Governor nominates one-sixth of the members to the State Legislative Council, as well as one member to the State Legislative Assembly from the Anglo-Indian Community, ensuring representation for minority groups.

●Veto Power: The Governor can assent to bills, withhold assent, return bills for reconsideration, or reserve bills for the President’s consideration. This includes bills that might endanger the position of the state high court or violate constitutional provisions.

●Ordinances: When the state legislature is not in session, the Governor can promulgate ordinances. These ordinances must be approved by the legislature within six weeks of reassembly.

●Reports: The Governor is responsible for laying the reports of the State Finance Commission; State Public Service Commission, and Comptroller and Auditor General before the legislature.

Financial Powers

●State Budget: The Governor ensures that the Annual Financial Statement (state budget) is presented to the state legislature, a critical aspect of financial oversight.

●Money Bills: Money bills can only be introduced in the state legislature with the Governor's prior recommendation, giving the Governor significant influence over state finances.

●Grants and Advances: The Governor’s recommendation is required for any demand for grants. Additionally, the Governor can make advances from the Contingency Fund to cover unforeseen expenditures.

●Finance Commission: The Governor constitutes a Finance Commission every five years to review the financial status of panchayats and municipalities, ensuring fiscal decentralization and equitable distribution of resources.

Judicial Powers

●Pardons and Commutations: The Governor has the power to grant pardons, reprieves, and commutations for sentences related to state laws, providing a means of mercy and judicial review.

●Judicial Appointments: The Governor consults with the President on the appointment of judges to the state high court and makes appointments and promotions of district judges and other judicial officers in consultation with the state high court and Public Service Commission.

Friction Between State Governors and Chief Ministers

  • The relationship between State Governors and Chief Ministers (CMs) in India is important to the smooth functioning of state governments. However, this relationship is often marked by friction, which can disrupt governance and create political turmoil.

Several factors contribute to the conflicts between state governments and Governors:

  • Political Differences: Governors are appointed by the President on the advice of the central government, which can lead to conflicts when the state government is led by an opposition party. For example, if the central government and the state government are from different political parties, the Governor might be perceived as biased or acting in favour of the Centre.
  • Discretionary Powers: Governors have several discretionary powers, such as withholding assent to bills, appointing the Chief Minister in case of a hung assembly, and deciding when to dissolve the state assembly. These powers can lead to friction, especially when used in ways that the state government perceives as partisan or unfair.
  • Role Ambiguity: The Constitution grants Governors significant powers but lacks detailed guidelines on how these powers should be exercised. This ambiguity allows for varied interpretations and can lead to disputes over whether the Governor is overstepping or underperforming their role.
  • Delay in Decisions: Governors can delay decisions on bills or appointments, which can be perceived as obstructive. For example, withholding assent to a bill for an extended period or delaying the appointment of key officials can create tension between the Governor and the state government.
  • Public Statements and Criticism: When Governors make public statements criticizing the state government’s administration or policies, it can strain their relationship with the Chief Minister. Such remarks can be seen as undermining the authority of the state government.

 

Case Study

●Tamil Nadu: The friction between Chief Minister MK Stalin and Governor RN Ravi highlights current tensions. In 2023, the Tamil Nadu government filed a case in the Supreme Court over the Governor’s refusal to reinstate a minister. This legal battle highlights the strained relationship between the state administration and the Governor’s office.

●Kerala: In 2023, Kerala’s government approached the Supreme Court after Governor Arif Mohammed Khan delayed giving assent to several bills. The state government argued that such delays were unconstitutional and lacked good faith, demonstrating how disagreements can escalate to judicial disputes.

●Jammu and Kashmir: In 2018, former Governor Satyapal Malik dissolved the Jammu and Kashmir Assembly despite indications of potential coalition formations. This move paved the way for the state’s bifurcation into Union territories, raising concerns about the use of powers for political purposes.

●West Bengal: Former Governor Jagdeep Dhankhar’s public criticism of West Bengal’s law and order situation and political violence created friction with Chief Minister Mamata Banerjee. Such public statements can exacerbate tensions between the Governor and the state government.

Way Forward

Enhancing the Appointment Process

●Current Issue: Governors are appointed by the President of India on the advice of the central government. This process can lead to perceptions of bias, especially when the state government and the central government are from different political parties.

●Recommendation: Establish a more balanced and transparent selection process. A suggested model involves forming a panel consisting of the Prime Minister, Home Minister, Lok Sabha Speaker, and Chief Ministers of states. This approach would ensure a more impartial selection and reduce the perception of political bias.

●Example: In some countries, such as Canada, the appointment process for provincial Lieutenant Governors involves consultations with provincial leaders, which helps balance political interests and ensure neutrality.

●By including diverse stakeholders in the appointment process, the selection of Governors can become more representative and less politically motivated. This could develop a more cooperative relationship between the Governor and the state government.

Implementing Fixed Tenures

●Current Issue: Governors serve at the pleasure of the President, leading to uncertainty about their tenure. This can create instability and make Governors vulnerable to political pressures from the central government.

●Recommendation: Implement a fixed five-year tenure for Governors. This change would provide stability and allow Governors to perform their duties without undue influence from political changes at the central level.

●Example: In the United States, state Governors have fixed terms, which helps ensure stability and continuity in state governance.

●A fixed tenure would allow Governors to focus on their roles without the constant concern of political changes affecting their position. This stability could lead to more consistent and fair administration.

Establishing Clear Guidelines for Powers

●Current Issue: The Constitution grants the Governor's discretionary powers, but lacks detailed guidelines on how these powers should be exercised. This ambiguity can lead to disputes and misuse of powers.

●Recommendation: Develop and implement clear guidelines for the exercise of gubernatorial powers, including procedures for granting assent to bills, appointing officials, and dissolving assemblies. This would help standardize practices and reduce conflicts.

● Example: The United Kingdom has detailed protocols for the exercise of the Queen's powers, which helps prevent misunderstandings and disputes.

●Clear guidelines would provide a framework for Governors, ensuring that their actions are consistent with constitutional principles and reducing the potential for friction with state governments.

Creating an Impeachment Mechanism

●Current Issue: Currently, there is no formal mechanism for impeaching a Governor. This lack of accountability can lead to misuse of power and grievances from state governments.

●Recommendation: Introduce a mechanism for the impeachment of Governors by the state Assembly. This provision would provide a formal process for addressing issues of misconduct or misuse of power.

●Example: In some democracies, such as the United States, impeachment mechanisms exist for high officials to ensure accountability and prevent abuse of power.

●An impeachment mechanism would provide a check on the Governor’s powers and offer a way to address serious grievances, ensuring that Governors act in accordance with constitutional norms.

Improving Communication and Cooperation

●Current Issue: Tensions often arise from poor communication and lack of cooperation between the Governor and the state government. Public statements and criticisms by Governors can exacerbate these issues.

●Recommendation: Develop regular and open communication between the Governor and the Chief Minister. This could include scheduled meetings, collaborative decision-making processes, and transparent handling of disagreements.

●Example: In Germany, regular meetings between the federal and state governments help maintain effective communication and cooperation, reducing the potential for conflicts.

● Improved communication can help resolve misunderstandings and build a more cooperative relationship. This would facilitate smoother governance and more effective handling of state issues.

Key Commissions and their Recommendations on Centre-State Relations

Sarkaria Commission (1983-1988)

  • The Sarkaria Commission was set up in response to increasing demands for state autonomy and tensions between the central and state governments. Its primary task was to review and suggest improvements in the Centre-State relations.
  • Major Recommendations:
    • Role of Governor:
      • Appointment: The Governor should ideally serve a five-year term and be a person of high repute with minimal political connections. Appointments should involve consultations with the state Chief Minister and key central figures.
      • Removal: Governors should be removed only for specific reasons outlined in the Constitution or for moral and legal failures.
    • Use of Article 356:
      • Article 356, which allows for President’s Rule in states, should be used only as a last resort. The Commission recommended issuing a warning before invoking this article and ensuring that the grounds for its invocation are made public.
    • Legislative Matters:
      • The Union should legislate on concurrent subjects only when necessary for national uniformity. States should be consulted on such matters.
    • Parliamentary laws on concurrent subjects should be time-bound rather than perpetual.
  • The recommendations of the Sarkaria Commission aimed to balance power between the Centre and the States while reinforcing cooperative federalism. Despite its influential suggestions, many of its recommendations, like the use of Article 356, have seen limited implementation.

Administrative Reforms Commission (1969)

  • The Administrative Reforms Commission was tasked with suggesting reforms to improve the functioning of the Indian administrative system and Centre-State relations.
  • Major Recommendations:
      • Establishment of an Inter-State Council: To promote better coordination between the Centre and the States.
      • Delegation of Powers: Recommend greater devolution of powers to states and enhance their financial resources through fiscal transfers.
      • Appointment of Governors: Suggested non-partisan and experienced individuals for the role of Governors.
  • The Commission's work laid the groundwork for the Inter-State Council, which was later established in 1990. Its recommendations aimed to enhance state autonomy and ensure better federal coordination.

Rajmannar Commission (1969)

  • The Rajmannar Commission, appointed by the Tamil Nadu government, focused on state autonomy and Centre-State relations.
  • Major Recommendations:
      • Inter-State Council: Immediate establishment of the Inter-State Council.
      • Deletion of Articles 356, 357, and 365: These articles deal with the President’s Rule and the dissolution of the state government, which the Commission suggested should be abolished.
      • Abolition of All-India Services: Proposed the end of All-India Services like IAS, IPS, and IFS.
  • The Rajmannar Commission’s recommendations, particularly regarding the Inter-State Council and the abolition of certain articles, were not implemented. Its work highlighted regional concerns and the demand for greater autonomy.

National Commission to Review the Working of the Constitution (NCRWC) (2000)

  • The NCRWC was established to review the functioning of the Constitution and propose improvements.
  • Major Recommendations:
      • Inter-State Trade and Commerce Commission: Suggested the establishment of this commission to streamline inter-state trade and commerce.
      • Appointment of Governors: Proposed a committee for Governor appointments, including the Prime Minister and Chief Minister.
      • Emergency Provisions: Recommended localized emergency provisions for specific areas instead of entire states.
  • Many of NCRWC's recommendations reiterated those of the Sarkaria Commission. Its proposals aimed to refine the governance structure and enhance federal coordination.

Punchhi Commission (2007)

The Punchhi Commission was tasked with examining Centre-State relations and the role of the Governor.

  • Major Recommendations:
      • Fixed Term for Governors: Suggested a five-year term for Governors and removal through impeachment by the State Legislature.
      • Localized Emergency Provisions: Proposed limiting emergency provisions to specific districts or areas for a maximum of three months.
      • Deployment of Forces: Recommended allowing the Centre to deploy forces in communal situations without state consent for a short period.
  • The Punchhi Commission’s recommendations aimed to provide a more balanced approach to federal governance and emergency provisions, though many suggestions remain under review or have not been fully implemented.

S. R. Bommai v/s Union of India (1994)

●The Supreme Court case S. R. Bommai v/s Union of India (1994) is a significant judicial pronouncement on the use and abuse of Article 356 of the Indian Constitution, which allows for the imposition of President's Rule in states.

●The decision by a nine-judge bench aimed to curb the misuse of Article 356 and uphold the federal structure of the Indian Constitution.

Principles Laid D by the Court

●Testing Majority: The Court mandated that the majority of the Council of Ministers must be tested on the floor of the House before considering imposition of the President's Rule.

● Warnings and Time: The Center must provide a warning to the state government and a reasonable time to rectify the situation.

●Judicial Review:

  •  Material Review: Courts can review if there was any material behind the Proclamation if it was relevant, and if the power was used in bad faith.
  •  Limits: Courts cannot question the advice of the Council of Ministers but can review the material on which the advice was based.

●Approval by Parliament: The President’s actions under Article 356 must be subject to approval by both Houses of Parliament, and no irreversible actions should be taken until this approval.

●Proper Use of Article 356:

  • Proper: Used in cases of hung assemblies, failure to form a government, constitutional breakd, internal subversion, or physical breakd.
  • Improper: If used for political gains, without a genuine breakd, or for intra-party issues.

● Restoration of Government: Courts can restore the dismissed government if the Proclamation is found unconstitutional, regardless of Parliamentary approval.

● Election Stay: Courts have the power to stay elections pending the final decision on the validity of the Proclamation to avoid the situation becoming irreversible.

Conclusion

  • The power of Governors to sanction the prosecution of Chief Ministers is a complex issue that intertwines legal principles with political dynamics. While this power is designed to uphold the rule of law, it also has significant political implications. Ensuring transparency, fairness, and accountability in these decisions is crucial for maintaining trust in the system and effective governance.

Must Read Articles:

Governor’s immunity

Appointment of state governors

Source:

The Hindu

The Hindu

Indian Express

Legal bites

Institute of South Asian Studies

PRACTICE QUESTION

Q. Analyze the role of the Governor in the Indian federal system. Discuss how the Governor's powers can potentially create conflicts with the State Government, particularly in situations of political instability or minority governments. What measures could be implemented to ensure a balanced relationship between the Governor and the State Government?

 

 

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