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President Can Make History
|by Dr. Rajinder Puri|
The BJP leaders met President Pratibha Patil urging her to recall Karnataka Governor HR Bhardwaj. The Governor sanctioned prosecution of the Chief Minister for alleged corruption in response to a petition filed before him by two lawyers. The BJP has accused the Governor of being partisan and motivated. The Governor claims his right to sanction prosecution in what he considers a fit case of corruption.
The Governor is morally correct. He has the right to sanction prosecution. The case against the Chief Minister does raise serious questions of propriety. The CM used his discretionary quota to allot land to his sons. After the public outcry the allotments were cancelled. The BJP considers this impropriety miniscule compared to the mega corruption of central ministers. The BJP is right. But the Governor is not bound to take a decision in the light of the overall political context. He has to exercise his right on the merits of the petition before him.
However the Governor may be legally improper. He has erred on procedure. The charges leveled in the petition against the CM are already being investigated by the Lok Ayukta as well as by a judicial commission. Propriety demanded the Governor to have urged the Lok Ayukta and the judicial commission to hasten their respective inquiries. He could have even forwarded the petition to both parties. To sanction prosecution without awaiting the results of ongoing investigation smacked of motivation. It cast an avoidable shadow on the Governor’s impartiality.
Now the issue is before President Patil. What can she do? She can in fact take the first step that could usher long overdue reform of the system. She can decide the issue herself and direct the Governor to act accordingly. With regard to questions related to the Governor’s role the President is in no way bound by the advice of the Cabinet. Article 74 (1) of the Constitution states: 'There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with this advice.' The President must follow this directive on subjects that come within the Cabinet’s purview.
However the Governor’s functioning does not come under the Cabinet’s purview. In the Dr Raghulal Tilak case (1979) the Supreme Court ruled that in no manner was the Governor 'subordinate or subservient' to the Union Government. The Governor cannot be considered a sovereign entity. The Governor’s decisions therefore are accountable to the President. President Patil therefore can decide the issue independently of the Cabinet’s advice. The President can direct the Governor to stay his sanction to prosecute the CM. The President can urge the Governor to await the early disposal of the pending investigations of the CM’s alleged corruption. In an extreme case the President can order recall of the Governor.
It is up to the President to decide the issue and act independently of the Union Cabinet. If that were done the wrong interpretation of the Constitution and its misuse might not be undone overnight. Pratibha Patil herself might not emerge overnight as the President exercising the powers granted to her office by the Constitution. The system may not reform overnight. But a first step towards reform would have been taken. As Mao Zedong said: “The journey of a thousand miles begins with a step.”
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