VVP Sharma
The arrest of two Trinamool Congress ministers in West Bengal along with a legislator and former minister and a former Kolkata mayor in connection with the Narada scam has raised Opposition eyebrows over the Governor’s propriety. Jagdeep Dhankhar is said to have used what is called a grey area of the Constitution in the manner and the timing in which he gave sanction to the Central Bureau of Investigation to arrest the four persons. What is this grey area?
The story begins with whether the Governor is the sanctioning authority in the case. The Supreme Court in the M Karunanidhi vs Union of India in 1979 held that the office of a minister and a chief minister is a public office for three reasons: One, that a minister is appointed or dismissed by the Governor and is, therefore, subordinate to him whatever be the nature and status of his constitutional functions. Two, that a chief minister or a minister gets salary for the public work done or the public duty performed by him. Three, that the said salary is paid to the chief minister or the minister from the government funds. Therefore, the Governor can argue in favour of his right to sanction action against the ministers.
However, this runs contrary to the position of the CBI vis-à-vis half-a-dozen Members of Parliament — it requested the Lok Sabha speaker, Om Birla, for sanction. This is a strange situation where for an MP, the Lok Sabha Speaker’s permission is sought while for a member of the state assembly, the Governor’s sanction is taken, not the assembly speaker’s.
Interestingly, in the RS Nayak vs AR Antulay case judgment in February, 1984, the Supreme Court said: “We have expressed our conclusion that where offences as set out in Sec. 6 are alleged to have been committed by a public servant, sanction of only that authority would be necessary who would be entitled to remove him from that office which is alleged to have been misused or abused for corrupt motives.” Who is that authority in this case, the Governor or the Speaker? The latter certainly cannot be that authority.
The second part of the story relates to the timing of the Governor’s sanction. The CBI approached the Governor only in January 2021 for sanction in the case that pertains to 2016. It is altogether another issue as to why the agency did not seek sanction against Suvendu Adhikari and Mukul Roy who had since left the Trinamool and joined the BJP and despite the fact that Roy is considered the main accused in the case.
The Governor did not act on the CBI request all through January, February and March; the state assembly elections began only on March 27 and it is also a ‘grey’ area whether the Raj Bhavan okaying or turning down the sanctions would have been construed as a violation of the Election Commission’s model of conduct in terms of influencing the voters. Governor Dhankhar gave his sanction on May 10. That was five days after Mamata Banerjee was sworn in as Chief Minister. That was four days after the newly elected legislators took oath of office in the Assembly. That was also just a day before the rest of her ministry, including Firhad Hakim and Subrata Mukherjee, was sworn-in on May 11.
This period between May 5 and May 10 is a grey area. Mamata was sworn-in alone. Only she represented the government. There were no ministers then and until the same Governor swore them in on May 11. So, what was the constitutional status of Firhad Hakim and Subrata Mukherjee on May 10? They were only MLAs. The courts have held that MLAs are not public servants under the Indian Penal Code (IPC) as they are not paid by the ‘executive government’ for their duties and also because the legislature is not considered to be within the ‘ambit’ of the government as per Section 21(12) of the IPC. Which clearly means, no separate sanction from the Governor was anyway required for them. They became ministers only on the morning of May 11. However, their current ministership has no bearing on the Narada sting case.
What is pertinent is whether the two were ministers at the time they are alleged by the CBI to have committed an offence. Firhad Hakim was a minister, handling urban development and municipal affairs, during the 2014-2016 period when the sting was in operation.But Hakim in the meantime stood for fresh elections, became an MLA and was sworn-in on May 11, a day after the sanction was given. Subrata Mukherjee was the panchayats and rural development minister. However, there is another legal issue that says the accused in such case must continue to be a public servant till the date cognizance is taken by the court. Is not the break in ministership key to deciding the validity of the sanction?
In the RS Nayak vs A. R. Antulay verdict of 1984, the apex court pointed out: “If the accused has ceased to hold that office by the date the court is called upon to take cognizance of the offences alleged to have been committed by such public servant, no sanction under Sec. 6 would be necessary despite the fact that he may be holding any other office on the relevant date which may make him a public servant as understood in Sec 21, if there is no allegation that office has been abused or misused for corrupt motives.” Is the bearing this pronunciation of the court has on the Governor’s sanction self-explanatory?
