The action of Karnataka governor H.R. Bhardwaj granting sanction to private complainants to initiate the prosecution of chief minister B.S. Yeddeyurappa and state home minister R. Ashoka is the first case of its kind when the governor had granted sanction for prosecution of a chief minister on the private complaints.

So far the issue of sanction in all the cases of corruption against the chief ministers, including Parkash Singh Badal, Amarinder Singh and Rajinder Kaur Bhattal in Punjab, Om Prakash Chautala in Haryana, late Karunakarn in Kerala, Lalu Prasad in Bihar and Mayawati in Uttar Pradesh as in their cases the issue of sanction was considered only after the probe agencies had filed the chargesheets.
Since the private complaints against Mr Yeddeyurappa and Mr Ashoka would have to be placed before the competent court with appropriate material by the complainants, and if the court forms a “prima facie” opinion that a case is made out then the court would have to refer it for further probe to the investigating agencies.
The investigating agency concerned would than collect the evidence and evaluate them to form an opinion whether a chargesheet could be filed.
If it decides to file the chargesheet, then in this case of course the sanction issue would not arise as the governor has already granted it in advance.
But then the experts also feel that the governor’s action would be seen as putting the “horse before the cart” in anticipation that the material produced by the complainants would definitely result in filing of the chargesheet.
“Though the governor has a right to grant sanction to prosecution on a private complaint, it is, however, an extreme and extraordinary step, which was unheard of,” former Delhi high court Judge and senior advocate R.S. Sodhi said.
He said ultimately the issue has to be decided by the trial court “whether prima-facie there is actually a case made out against him (CM) or not.”
The other important question to be considered was that it was always prudent for the governor to “go by the advice of the cabinet, though there are exceptions where he can act independently and should act independently”.
According to Former Lok Sabha secretary-general and constitution expert Subhash Kashyap, the scope of the prosecution of a public servant on private complaint was limited as compared to a case registered and investigated by the probe agency.
He felt that there was always “lurking danger” in this kind of sanction by the governor if the court on primary examination comes to the conclusion that “no prima facie” case is made out. In such a situation, the Governor would expose himself to a severe criticism and even could be accused of “precipitating constitutional crisis” in the state.
“Under the Constitution, the governor has some discretionary power, which can’t be questioned, but the areas of discretion has been specifically mentioned in the Constitution. There is a established code of procedure under the law. I think, the Governor has not followed the due procedure of law in granting sanction to prosecute of Karnataka CM B.S. Yeddyurappa.”
“The Governor has granted sanction of prosecution by going one step ahead and that too on an ex-parte basis (without giving the CM a chance to explain) which is not right,” Mr Kashyap said.