Governor's Sanction Was Without Application Of Mind, Against Natural Justice: CM Siddaramaiah To Karnataka HC In MUDA Case

Chief Minister Siddaramaiah told the Karnataka High Court on Thursday that the Governor's sanction order permitting the former's prosecution in the alleged Mysore Urban Development Authority (MUDA) "scam" was without "application of mind", questioning the latter's decision making process which pointed to violation of principles natural justice.

The high court was hearing the CM's plea seeking quashing of an order issued by the Governor Thaawar Chand Gehlot granting sanction to prosecute the former in the alleged multi-crore scam relating to MUDA. On August 19, the high court had directed the trial court to defer all proceedings against Siddaramaiah, based on the governor's sanction, till the next date of hearing before the high court.

Governor's sanction without application of mind

Appearing for the CM, senior advocate Abhishek Manu Singhvi began by submitting before a single judge bench of Justice M Nagaprasanna that the sanction given by the Governor was not "suo motu", was without "application of mind" and should thus be set aside. 

He said, "The replies (to the petition) we have received make it quite comic and make out my case completely. Based on the replies my petition can be allowed. Textual ingredients of Sec 17A of PC (prevention of corruption) Act were not satisfied still governor granted approval. Public servant here has neither made any decision or any recommendation in any capacity as CM or Deputy CM. The principal complainant (R3) has filed a reply which says no S.17A is required. He says unconditionally not required and at another place he says it is not required now. The whole writ should be allowed, and complaint should be withdrawn, and Governor should impose cost on him".

Singhvi further argued, "This person like Alice in wonderland applies to the Governor. R3 has made a complaint he seeks sanction, Governor grants sanction, it is not a suo-motu action. The complainant says it is not necessary. Therefore, the sanction should be treated as not required. Thus, the foundation of the sanction order goes. This cannot be just that you set the system in motion and take it back. You cannot have it both ways. Once you get sanction, you come to court and say sanction is not required. People like the Governor be restrained. People walking down the path making complaints and seeks sanction and he gives it. R3 is playing with the Governor and also with the court. Only Legal consequence is that he should withdrawn or court should treat it as non-est. Thus sanction goes as it is not suo-motu. Even R4 has got sanction from the Governor. The Governor has purportedly applied mind to R4 and R5. But this complainant did not sought the sanction". 

Pointing to the complaint made by complainant Respondent 4 (Snehamayi Krishna) to the Governor, Singhvi said that it "shows complete non-application of mind by R2 (Governor)" and thus the sanction order should go. 

At this stage the high court orally said that respondent 4 was not seeking sanction but was referring the case for investigation, noting that a show cause notice was not issued to the CM.

To this Singhvi said, "kindly record that counsel for R4 says on July 31 'sought sanction'...The more you weave a web you get caught in it. Governor does not consider the sanction application and does not issue show cause notice. It is more than astonishing a man who files 100-page rejoinder forgot to mention it". 

Natural Justice subject neutral, Governor has discretion but should have given reasons

The high court further enquired whether Section 17A Prevention of Corruption (PC) Act contemplates issuance of show cause notice. Singhvi said that it does as part of the natural justice principle. For context Section 17A pertains to Enquiry/Inquiry/investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.

Singhvi submitted that natural justice has now been "elevated to Article 14" of the Constitution of India and that in this case, arguing that no show cause notice was issued in these complaints. He added that the reason behind this was to "hurry and pass the order". 

Responding to the court's query Singhvi said that the complainant had filed a complaint with the Lokayukta as well.

On the application of the PC Act, the senior counsel said that the offence took place sometime in 2005 and so in 2010, Section 17A cannot be applied "retrospectively". He further submitted that Governor was now stating that "he does not wish to file reply" and that he had said that there were "specific dates of complaints pending".

On the pending complaints, Singhvi said that these complaints were "much prior" and in some of them investigation is completed, chargesheet had been filed subject to sanction against Shashikala Annasaheb Jolle, Muruigesh Nirani", adding that a sanction is "completely reviewable" as had been held by courts.

"The beauty of this case is Governor has not applied his mind or dealt with single point. One point he deals with is 'I am not bound with Cabinet advice'...There is nothing in the sanction order, except that 'I received a complaint and I am not bound by the cabinet decision so grant sanction'. This on the merits is most strong ground to set it aside," Singhvi argued.

The high court however orally said that the sanction against Chief Minster is an "independent decision" and the Governor cannot fall back on decision of Cabinet. Singhvi thereafter referred to decisions of the Supreme Court to argue that even the Governors actions are "fully reviewable". 

On the violation of natural justice aspect Singhvi referred to certain dates and said, "...show cause notice issued to me and meanwhile AG has given opinion on July 31, and cabinet note is of Aug 1 which attaches AG opinion. I separately replied on Aug 3. I also cited the law and etc etc. By order dated Aug 16, everything is decided. All the points i have raised of diverse nature you (Governor) have not dealt with any. That is one part of natural justice".

Arguing that once a person is elected then only the "people" have the right to remove him, Singhvi emphasized that in such a situation "every filtered threshold" must be safeguarded and that Karnataka was the "first state to safeguard federalism" referring to the SR Bommai case. 

"In natural justice you are having of plethora of material which you can overrule, nobody is grudging your (Governors) discretion but decision-making process is questioned. Natural justice is subject neutral it cuts across every law," Singhvi emphasized. 

Referring to other decisions of the Supreme Court on the aspect of natural justice principle Singhvi said, "Is it fair? What is the tearing hurry when six other complaints are pending. Article 14 is one of the most power articles in our constitution. Article 21 and Article 14 are biggest Brahmastra which we have.I am not expecting you (Governor) to write a judgment but give reasons". 

He further submitted that the two replies (filed by Respondent 3 and 4–Abraham TJ and Snehamayi Krishna respectively ) received by the petitioner yesterday are full of facts and that the petitioner is not required to answer the same; as the issue raised in the plea concerns the "regarding validity of the sanction order". 

"I would therefore say this case is a fit one, this sanction must go. This sanction must go on admissions by the complainant itself. This sanction must go for separate reason as there is no reason", Singhvi said while concluding his submissions. 

On Intervention Application 

Meanwhile, after noting that an "intervention application" had been filed in the matter the high court orally said to the intervenor's counsel, "We are not hearing a PIL, it is an order of Governor called in question by person against whom it is passed. If you have filed intervening application, we will consider it". 

The high court thereafter listed the matter for August 31, for submissions to be made by Solicitor General Tushar Mehta (appearing for the Governor) and continued the operation of the interim order passed on August 19. 

At the outset Singhvi had said that the petitioner had not filed rejoinders to the replies filed by Respondent 3 and 4. He further said that two parties i.e., Governor and the complainant Abraham had not filed replied.

A counsel appearing from Solicitor General's office (who appears for the Governor) said that assistance would be provided on the question of law which has been raised. It was further submitted that written submissions would be filed on the point of law. The high court recorded senior advocate Prabhuling Navadgi's submission–who appears for one of the complainants–that they dont have any objections to file and all documents which are necessary to be relied upon have been produced by the petitioner (CM). Singhvi thereafter submitted that objections filed by Respondent 3 and 4 had been served on petitioners and if rejoinder is be required it would be filed. 

Background

The petition challenged the order issued by the Governor on August 17 granting approval for investigation as per Section 17A of the Prevention of Corruption Act and sanction for prosecution as per Section 218 of the Bharatiya Nagarik Suraksha Sanhita. The CM's plea claimed that the sanction order was issued without due application of mind, in violation of statutory mandates, and contrary to constitutional principles, including the advice of the Council of Ministers, which is binding under Article 163 of the Constitution of India. It is claimed that the impugned order of sanction is tainted with mala fides and is part of a concerted effort to destabilize the duly elected government of Karnataka for political reasons. 

Case title: Siddaramaiah AND State of Karnataka & Others.