Judges have declared themselves immune from prosecution by weaving in their own privileges as part of the basic structure doctrine. By refusing to grant any relief at all to the Congress at such an unearthly hour appeared that the bench erred on the side of caution.
The three-judge bench comprising Justices Arjan Sikri, Sharad Bobde and Arjun Bhushan’s refusal to stay the swearing in of BJP chief minister Y S Yedurappa in the wee hours of Thursday has indirectly sparked a crisis in the country with the Congress staking its claim to form the governments in Goa, Mizoram and Meghalaya where there is no doubt that the Congress was the single largest party. Rebellion has broken out in other states.
Ram Jethmalani, the 94-year-old lawyer came out from retirement to seek intervention in the Congress’ petition challenging Karnataka governor Vajubhai Vala’s calling upon the BJP to form the government although it lacks a majority. “His action is a gross abuse of his gubernatorial office,” Jethmalani has alleged in his petition.
The senior lawyer appears correct because governors, like judges, must be apolitical as they swear to uphold the Constitution and not their narrow political interests. But realpolitik and idealism are apposite because it was Narendra Modi who gifted Vajubhai Vala with the Karnataka gubernatorial post as a delayed quid pro quo after the latter vacated his Gujarat assembly seat in 2001 to enable Modi to contest his maiden election.
Vala was an RSS pracharak and despite being sworn in as a governor, will remain loyal to Modi which Jethmalani alleges grossly abuses his gubernatorial oath. Jethmalani declared he was neither for nor against any political party but was left with no choice but to intervene when all democratic norms were abused..
A three-judge bench comprising Chief Justice of india (CJI) Dipak Misra, A M Khanwilkar and D Y Chandrachud told Jethmalani on Thursday to mention his petition before the special bench comprising Justices Arjan Sikri, Sharad Bobde and Ashok Bhushan which had earlier refused relief to Congress’ Abhishek Manu Singhvi in a drama which went on in the Supreme Court from 1.45 am till 4.30 am.
The moot question is when Justice Sharad Bobde asked Singhvi, “how can we injunct the governor? The trend of the Supreme Court is not to interfere.” But Singhvi vehemently argued that the governor’s action was subject to judicial review because if Justice K.M. Joseph could strike down President’s rule in Uttarkhand, there was no reason why the Karnataka governor’s action could not be reviewed.
He was right because nobody is above the law although the President, governors of all states and the judges of the 24 high courts and the Supreme Court are immune from criminal prosecution while they occupy office. Judges have declared themselves immune from prosecution by weaving in their own privileges as part of the basic structure doctrine. By refusing to grant any relief at all to the Congress at such an unearthly hour appeared that the bench erred on the side of caution.
Governors, like judges, cannot be above the law. To illustrate, in the Vyapam murders, the governor of Madhya Pradesh, Ram Naresh Yadav, was an accused with his son, Shailesh. The governor’s son was accused of accepting a bribe of Rs 3 lakhs in the Raj Bhavan premises. Yadav was not discharging gubernatorial duties when implicated in the Vyapam scam.
The moot question is what did the BJP declare in their two letters to Governor Vajubhai Vala dated May 15 and 16? If, in one of the letters, the BJP declared that they had the support of 104 MLAs, then Governor Vajubhai Vala has abused his Constitutional post. And by refusing to injunct the patently illegal action of the Karnataka governor which allows MLAs to be bought and sold within the 15-day time given to prove its majority, the apex court in effect, is declaring that governors are above justice and the law.
Olav Albuquerque holds a PhD in Media Law. He is a journalist-cum-lawyer of the Bombay High Court.