Decision Of Cabinet Nominated By 'Their Leader' CM Siddaramaiah Not Unbiased: Karnataka HC Finds Governor's Independent Discretion Justified

Dismissing Chief Minister Siddaramaiah's plea against the Governor's sanction to prosecute him in the alleged MUDA "scam", the Karnataka High Court on Tuesday observed that the decision of the cabinet–nominated by the CM, with regard to consideration of sanction would not be unbiased "towards their leader". 

Thus, the court noted, in such "exceptional circumstances", the Governor Thaawar Chand Gehlot had taken the "appropriate decision" of "independently" assessing the matter and had exercised his independent discretion in passing the order. 

Cabinet nominated by CM, its decision not free from bias

Considering the matter on the bedrock of bias a single judge bench of Justice M Nagaprasanna in its 197 page decision observed, "Considered on the touchstone of the principles of bias, as laid down by the Apex Court and on the perusal of the preamble of the Cabinet note supra what would unmistakably emerge it that the decision of the Cabinet – the cabinet nominated by the Chief Minister, would not be free from bias or being partisan towards their leader". 

"It is in such exceptional circumstance, independent discretion is imperative; the Governor has thus taken an appropriate decision to independently assess the matter, exercise his independent discretion and pass the order. I find no fault with the discretion exercised by the Governor acting on the Aid and advice of the Council of Ministers is normal imder Article 163 and exceptionally the Governor need not be bound by it – one such exception is the sanction/approval against the Chief Minister," the court added.  

The order was passed in the CM's plea seeking quashing of an order issued by Governor Thaawar Chand Gehlot granting sanction to prosecute the former in the alleged multi-crore scam relating to MUDA. 

For context, the Cabinet in its August 1 decision had said that Governor should have "under the present set of facts and circumstances" acted only on the aid and advise of the council of ministers and not in his discretion. It had said that the Governor while issuing the show cause notice to the CM on July 26 had failed to consider the material available on record as well as the alleged "criminal antecedents" of the complainant TJ Abraham. The council of minister's had "strongly" advised the Governor to withdraw the show cause notice issued to the CM and forthwith reject Abraham's plea by "denying prior approval and sanction as requested" by Abraham. 

The order notes that the CM in his August 3 reply to the Governor's show cause notice referred to the cabinet's decision, and that a portion of the CM's reply is "verbatim similar to what the Cabinet decision was". The order further notes that it appears that on perusal of the file, the Governor called for putting a "comparative statements of the objections – Chief Minister's reply and the Cabinet decision". After perusing through the papers, the Governor on August 16 passed the sanction order. 

Council of Ministers would not go against the CM

On the question of bias the high court observed that it has "different hues and forms" and is depicted in various ways. The court noted that unconscious bias and apparent bias are two "facets" of bias. It observed that "apparent bias" is judged on what a common citizen would think of a particular action.

"In the case at hand, the entire sheet anchor of the submission of the learned senior counsel is that the Governor should not have declined to accept the Cabinet decision or the resolution of the Council of Ministers as the petitioner did not participate in the deliberations, but nominated the Deputy Chief Minister, to preside over the said meeting. It need not bear scientific accumen to prima facie hold that the Council of Ministers who are appointed on the advice of the Chief Minister would go against the Chief Minister and pass a resolution that permission should be accorded for grant of approval by the Governor for prosecution . Such a situation cannot be contemplated today as, if such a situation emerges, it would be an utopian land, while it is not. Therefore, testing the decision of the Cabinet on the bedrock of bias, I find no fault in the discretion exercised by the Governor, on the foundation of law...," the high court said. 

Governor's decision had copious reasons 

On this aspect the high court, after taking note of the complete proceedings in the file maintained in the Secretariat of the Governor said that the Governor's Secretary had communicated his decision which contained all the material, running into several pages. 

Observing that the decision was not bereft of reasons the high court said, "I have perused the entire file; the documents that are in the file run into 1200 pages. The comparative chart of the complaint, replies and the analysis are in great elaboration. This Court is not testing the order passed by the Disciplinary Authority or an Officer of the State. It is testing the order passed by the high functionary. The high functionary in the case on hand is the Governor...As quoted hereinabove, the order that is communicated though is not bald, laconic or cryptic, as is alleged, the file contains elaborate reasons. The gist of these reasons is also quoted...Therefore, it is not a case where there is no reason, in the file, or even in the order. There are elaborate reasons in the order, and there is abundant reasoning in the file".  

The high court further remarked that the Governor's order was a depiction of "abundance of reasoning". It observed that the Governor was not acting on any material of investigation, to direct prosecution against the CM; he was at the threshold on whether approval should be granted under Section 17A of the Prevention of Corruption Act.

For context, Section 17A PC Act pertains to Enquiry/Inquiry/investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.

The court said that approval is only required for the "beginning of investigation, enquiry or inquiry". The present case was not at a stage where any "galivent would become necessary by the Competent Authority" by going deep into the facts of the case.

Observing that "copious reasons" were found in the file and the sanction order the court held that the Governor's decision does bear application of mind. 

Governor's decision not taken in undue haste would not vitiate proceedings 

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