Governor Can't Exercise Discretionary Power On Assumption That Cabinet Advice Biased Due To CM's 'Involvement' In Case: Siddaramaiah To Karnataka HC

Chief Minister Siddaramaiah on Thursday told the Karnataka High Court that the Governor's sanction order to prosecute him in the alleged Mysore Urban Development Authority (MUDA) "scam" was bereft of any reasons on why he was prima facie guilty while adding that the Governor's discretionary power in such cases was limited.

A single judge bench of Justice M Nagaprasanna was hearing 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. On August 19, the high court 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.

Among various arguments made, senior advocate Abhishek Manu Singhvi appearing for the CM said that it was important to keep in mind the "umbrella of statutory protections provided especially to an elected public servant paving way for an inquiry/investigation which has very serious implications of diluting or unseating a mandate contrary to the elections".

The senior counsel said that the same has to be interpreted in that contextual manner.

"That it is not just a walk in walk out system. There has to be a proper protective umbrella which is given a full letter and spirit implementation," Singhvi emphasized.

Singhvi further submitted that it would be a "mistake to suppose", that the moment a minister or a chief minister is involved, the established jurisprudence of the Governor having "extremely limited powers to act in his discretion" is automatically overridden. He submitted that the Constitution says that the "discretionary 'so called exceptional powers' of the Governor" are "limited and specific".

Singhvi said that a proviso was trying to be "engrafted" to say that the "moment CM is involved 'you must assume that advice of the council of minister is biased" and use the discretionary power.

"Governor has to demonstrate that 'I'm now acting in my discretionary power because of this apparent shown (prima facie) bias'. Second where there is no bias shown the demonstration to be there that the order suggesting no sanction is manifestly irrational," he said.

Once this point is demonstrated, then the Governor's discretionary power comes in, "which is the nuanced point", Singhvi added.

He further said that "without prejudice to the nuance in the Supreme Court's decisions in Shamsher Singh v State of Punjab (1974) and Madhya Pradesh Special Police Establishment v. State of Madhya Pradesh & Ors. (2004) The entire 5-6 page order of governor is only on one point that 'I'm deciding independently and I'm not bound by you".

He said that even if it is accepted that the Governor is not bound by the aid and advice of the council of ministers, the Governor had not gone beyond the sanction order "to add a word" as to how not being bound by the cabinet he had found "how what when or where the CM is complicit prima facie" and therefore he granted sanction.

"His (CM's) role, the CM's decision on that day, his ministry on that portfolio, his file noting on that event, nothing shows prima facie complicity but 'Im (Governor) granting sanction because I'm not bound'. The Hon'ble Governor therefore commits a very serious constitutional sin of answering a very important constitutional question by the answer 'why not'. Constitution asks him to say why and why not. You have to show affirmatively why it should be. That's the test. On this point the order is liable to be set aside because it does not deal with it," Singhvi added.

Singhvi further submitted that in 23 years, one person (the CM) is "singled" out by these three complainants. He added that in this period the petitioner has held several portfolios across but "no particular portfolio on this issue, file, approval is there".

"The only reasoning is presumptive doctrine which is why a third point is pressed into service after the case starts. Knowing that there is no manifest irrationality, that he has not dealt with any issue about Mr. Siddaramaiah...they (Governor's office) say now after case has started we will not find affidavit, we will produce file," Singhvi said.

Singhvi further submitted that in the present case, the sanction order of the Governor "without doubt demonstrates that there is cherry-picking" adding that the present case pertaining to the complaint against the CM was "unduly fast-tracked".

After hearing the arguments by counsel appearing for all the parties, the high court reserved the order.

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 (BNSS). Section 17A pertains to Enquiry/Inquiry/investigation of offences relatable to recommendations made or decisions taken by public servants in the discharge of official functions or duties.

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 was 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.