It is cheerful news that the Supreme Court has, in its supreme wisdom, deemed it proper to stay the effectuation of the sanction given by the Governor to Dr. Subramaniam Swamy to prosecute Ms Jayalalitha on some corruption charges. The Madras High Court had earlier ruled that the action of the Governor cannot be interfered with even if it were malafide. What is difficult about this verdict is that it reads into the Governorâs constitutional powers, an unquestioned authority on a theoretical basis, without regard to the unwritten rights of the Chief Minister as an elected leader who expects to be judged in a more democratic and less arbitrary manner than the letter of the law would allow.
In assessing the issue from the laymanâs point of view, the Governor can act only under the advice of the Council of Ministers. He is neither elected nor is he accountable to the people, which is a position quite opposite to that of the CM. Also, the Centre which appoints the Governor is not under any obligation or responsibility for the Governorâs decision; which means that the onus of the decision is entirely on him. In taking that decision, he is expected to be guided by a proper enquiry or investigation of the situation warranting that decision. In this particular case, there is no evidence of his having followed any procedure as prescribed in the Code of Criminal Procedure for complaints (like Dr. Swamyâs) falling within its ambit.
Dr. Swamy has contended that the Tamilnadu Governor gave sanction for the prosecution of the CM after considering the matter for over 17 months and applying his mind to the material before him.
The Court has rightly told him orally that, before according sanction, there should be clear and independent investigation aside of the material of the complaint placed before him. Without this, an accuser can get away saying that he had been applying his mind to the material for a long enough time. If this extenuation were permitted, any complaint can be validated by the sanctioning authority merely by sitting on the relevant material for days or months on end. That cannot be believed to be an application of the mindâ in the real sense of the term.
As the counsel for the CM has pointed out, there is a basic infirmity in the theory that the Governorâs action, whether malafide or bonafide, cannot be questioned. This goes against Article 21 of the Constitution which deals with fundamental rights. The Governorâs action rests on mere accusation without investigation and thus injures the fundamental right of the accused to liberty and reputation which cannot be assailed that way. To imagine that this right is flimsy enough to be demolished by merely flinging unproven charges does not square with any wisdom, legal or lay.
 As for the accusations against the Chief Minister, it is common knowledge that they are motivated by malice. It is a feeble attempt by the depleted Opposition to climb on centre stage of power by the proverbial âback doorâ, after being repeatedly rejected by the voters at the various by-elections. Much has been already said about the Governorâs unconcealed animosity towards Ms Jayalalitha; it would suffice to add that if Governors were allowed to act the way Dr. Channa Reddy did, no democratically elected government would last even for a day. It would only pave the way for perennial harassment of leaders with peopleâs mandate by persons who are amenable to be guided by âpolitical wastesâ which is what the opposition parties in TN are. To put it simply, a Governor is supposed to act on the advice of the Council of Ministers headed by the Chief Minister and not at the behest of opposition leaders against the Chief Minister. This could be the only reasonable interpretation of the Constitution.
The Supreme Court is obviously wary of allowing the Governorâs sanction to operate, especially when it is known that it has been accorded without even proper verification and has, therefore, granted the stay. It is surely a signal victory for Ms Jayalalitha. The stay itself has made it clear that the Supreme Court goes by the principle of natural justice. Now, it can be confidently hoped that she would get the full benefit of that justice, to the relief of democratic forces and of course to the chagrin of Swamy, Lekha & company.
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