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Wednesday, Nov 10, 2004

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PROSECUTING STATE MINISTERS

THE SUPREME COURT'S judgment on the powers of Governors to sanction the prosecution of State-level Ministers is significant in at least two ways. First, by upholding the right of a Governor to override the Council of Ministers in according such sanction, the Constitution Bench has broadened the discretionary powers of heads of States in a substantial and far-reaching way. Secondly, the Court, through its compact and tightly argued 25-page judgment, has clearly defined the limits of a Governor's power in according sanction to prosecute — an issue over which hung a cloud of legal confusion. The judgment was delivered in the context of an unusual case involving two former Madhya Pradesh Ministers in an alleged land scam. After the Council of Ministers had turned down the Lok Ayukta's recommendation that they be prosecuted for corruption, the Governor granted sanction to prosecute them under Section 197 of the Code of Criminal Procedure, 1973.

In upholding the Governor's order — and thereby setting aside two judgments of the Madhya Pradesh High Court, which held that a Governor cannot exercise the function of sanctioning prosecution "in his discretion" — the apex court has signalled that politicians in Ministerial office can no longer break the law with impunity in the knowledge that they will not be prosecuted. Provisions in the law that prevent courts from taking cognisance of charges against public servants without prior approval of the appropriate authority (such as Section 197 of the CrPC and Section 19 of the Prevention of Corruption Act, 1988) are ostensibly intended to shield this class of people from unnecessary harassment and vexatious litigation. The so-called immunity clauses, however, are often relied upon to abort the very process of justice. In the Madhya Pradesh case, the office of the Lok Ayukta, occupied by a former High Court judge, had conducted a detailed inquiry before concluding there were prima facie sufficient grounds to prosecute the two Ministers. Given this background, it is certainly suspicious that the State's Council of Ministers rejected sanction for prosecution on the ground that there was "not an iota of material" against the two Ministers. As the Supreme Court observed, "there would be a complete breakdown of the rule of law" if a Governor could not act on his own discretion in such circumstances.

The Court's judgment makes it clear that Governors do not enjoy powers to accord prosecution sanctions suo motu; they may act only when the Council of Ministers behaves in a way that "disables or disentitles itself." In other words, it is "on those rare occasions where, on the facts, the bias becomes apparent and/or the decision of [the] Council of Ministers is shown to be irrational... [that] the Governor would be right ... to act in his own discretion and grant sanction." At the same time, the Court has held that such gubernatorial discretion extends to sanctioning the prosecution of Chief Ministers, an issue that has generated considerable legal controversy. For instance, the Tamil Nadu Chief Minister, Jayalalithaa, had challenged the sanction accorded by Governor M. Channa Reddy to prosecute her in two cases. However, she withdrew the special leave petition, which was before a Constitution Bench in the Supreme Court, following her acquittal in both cases. The decision of the Governor of Bihar to give the Central Bureau of Investigation the nod to prosecute Chief Minister Lalu Prasad in the fodder scam raised questions of legal propriety. Given such a background, the Supreme Court's judgment has cleared the air of any uncertainty. The next question of course will be: who will ensure that Union Ministers who deserve to be prosecuted are not shielded through motivated refusal of sanction by the government of the day?

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