Abuse of Constitutional Offices

The assault on constitutional offices and propriety continues, even as those involved claim that they are in the right. H R Bhardwaj, the Governor of Karnataka, managed to create a furore when he gave his sanction to prosecute Chief Minister B S Yediyurappa. The case before the governor was an application by two lawyers seeking sanction for prosecution, which is a requirement under the Code of Criminal Procedure (CrPC), 1973 and the Prevention of Corruption Act, 1988. The private complaint arose out of Yediyurappa’s action as chief minister, allotting housing plots to his sons, among others. This, in Bhardwaj’s opinion, amounted to corruption and misconduct and fit for prosecution. The normal course of the law in cases involving such penal offences is for a police officer to register the complaint, carry out the necessary investigations and take up the complaint before a magistrate for committing the case to trial. This was not an option in this case since Yediyurappa happens to be the chief minister of the state and therefore a public servant. The criminal law calls for prior sanction in order to ensure that acts by public servants, even if they appear unlawful, are not treated as such when they are committed while they are acting or purporting to act in the discharge of their official duties. This provision of the CrPC is meant to protect personnel in the police and other forces from being dragged to the criminal courts for their acts performed in pursuance of their duties. Its application to ministers is based on the definition that they too are public servants. In the absence of prior sanction, those in office will be hamstrung by the fear of penal trials arising out of trivial and mischievous complaints.

It is this that required a decision by Governor Bhardwaj, who, on the face of it, only performed his duty. However, it is idle to argue this way and stop at that. The timing of the decision raises questions about the intentions. Bhardwaj’s step cannot but be seen in the context of public anger about the abuse of authority by ministers and officials of the United Progressive Alliance government at the centre and where the Congress is in power in the states. It is inevitable that the action of the UPA-appointed Bhardwaj would be interpreted as intended to implicate the Bharatiya Janata Party (BJP) in a corruption scandal of considerable magnitude. It is impossible, in this context, to gloss over Prime Minister Manmohan Singh’s prevarication in according sanction to Subramanian Swamy’s application to prosecute A Raja when he was union telecom minister. The prime minister simply sat over the application for two long years until the Supreme Court took note of it. Bhardwaj, however, acted with incredible promptness and gave his sanction in just three weeks. While one cannot grudge the speed of the decision-making process, it does raise questions as to the intention. And more so given Bhardwaj’s record in dealing with charges of corruption. Recall that Bhardwaj, as union minister for law and justice, had walked the long road only a few years ago to de-freeze Ottavio Quattrocchi’s account in a bank in London. The bank had frozen the account based on an earlier application by the Central Bureau of Investigation in the Bofors case.