governor's power to grant sanction to prosecute MLAs

For which purpose? Your query is no clarity.

my queries are on this matter. The Governor has signed the order allowing the CBI to arrest the four accused in the Narada scam who are members of the State Council of Ministers and also members of the State Assembly. My queries are (a) can the Governor sign such order and is it within the powers vested by the Constitution of India, (b) by not taking permission of the Speaker of the Assembly to arrest members of the House, it there an infringement of the law?

It's more a political question than legal. The point is when Politicians have involved the rules and regulations are used to their benefit to a larger extent. In the instant case, Speaker and Governor, both are "supposed" to be apolitical and neutral, can we really expect them!

 

Therefore, whatever discussions and arguments we undertake among ourselves in the forums or somewhere else, the matters shall ultimately reach Supreme Court and a proper Judgement shall come.

There was a detailed reply with all citations of earlier SC judgments on the same issue in this forum.  Please search as there was detailed discussion confirming that the Governor has such vast powers of discretion..

since the governor administers the oath of office and secrecy to the ministers, his or her office is the sanctioning authority.

2004 Supreme Court judgement in which the top court had agreed that the governor could give sanction for prosecution.

a judgement of the Supreme Court in a case related to former Madhya Pradesh ministers Rajender Kumar Singh and Bisahu Ram Yadav in which sanction to prosecution was given by the then governor.

A complaint was made to the Lokayukta against them for having released 7.5 acres of land illegally and they had challenged their prosecution in the apex court.

The top court in its judgement had said, "If, on these facts and circumstances, the governor cannot act in his own discretion, there would be a complete breakdown of the rule of law in as much as it would then be open for governments to refuse sanction in spite of overwhelming material showing that a prima facie case is made out."

"If, in cases where a prima facie case is clearly made out, sanction to prosecute high functionaries is refused or withheld, democracy itself will be at stake. It would then lead to a situation where people in power may break the law with impunity safe in the knowledge that they will not be prosecuted as the requisite sanction will not be granted.

The above points were discussed and was argued in detail in the case referred by you.

 

 

Hello!  

Code of Criminal Procedure lays down the granting of sanction in 2 cases. Sanction to Prosecute (Sec.132) and Sanction to take Cognizance (Sec.196 and 197). Sanction to prosecute is taken before the filing of FIR or the complaint whereas sanction to take cognizance is taken pre-cognizance and post-investigation stage.  

Section 132 says that any person who is a member of armed force and any other member of state government will not be prosecuted without the sanction of central or state government as the case may be. Sections 196 and 197 of the code put the need for sanction by central or state government if the court has to take cognizance.  

The contention in the case of the Narada scam was that the governor of West Bengal, Jandeep Dhankhar, gave the sanction to CBI to probe against the sitting ministers of the state without the consent of the speaker of the assembly which is normally given by the speaker of the assembly. The speaker, Biman Banerjee stated that the acts of the governor were undemocratic as it is the power of the speaker to grant sanction.  

There have been several cases where there had been debates as to who comprises of central and state government and who has the power to grant sanction in the cases against ministers or employees of the government. In Yashwant Trimbak vs The State of Madhya Pradesh and Anr., the court held that the governor had the authority to grant sanction to prosecute, and any person explicitly authorized by him can also grant sanction. For further clarification, you can also refer to R. S. Nayak vs. A. R. Antulay and M. Karunanidhi vs. Union of India.  

Regards   

Vasundhara Singh