"What the Home Minister has ignored is the explicit observation of Supreme Court that even though the Governor can act independent of the decision of the Council of Ministers and act in his own discretion, yet the issue of sanction has first to be considered by the Council of Ministers," Leader of Opposition in Rajya Sabha Arun Jaitley said.
He alleged that the statements of Justice Hegde, and P Chidambaram gives the impression that Governor H R Bhardwaj acted in a constitutionally correct manner by granting sanction to prosecute Yeddyurappa.
Enumerating on the "lacunae" in Bhardwaj`s decision, Jaitley said, "The complaint of the two advocates was not sent to the Council of Ministers. It`s views were not taken. The requirement of the complaint for grant of sanction being first considered by the Council of Ministers is not satisfied."
He maintained that there is no decision of the Council of Ministers which could be considered as "irrational or biased".
"The Governor by acting on his own, without waiting for the advice of the Council of Ministers, besides having acted unconstitutionally, has challenged the basis of democratic functioning where a primacy/role is given to the Council of Ministers," Jaitley said.
He insisted that in this case the consideration of the matter by the Council and its advice being placed before the Governor was necessary but the procedure was not followed.
The eminent lawyer cited a Supreme Court order which says the Council of Ministers has to first consider grant of sanction to prosecute.
"We also presume that a high authority like the Council of Ministers will normally act in a bona fide manner, fairly, honestly and in accordance with law," Jaitley said, quoting the Supreme Court.
The apex court further observed that in case the decision of the Council is found to be "irrational and based on non-consideration of relevant factors, the Governor would be right, on the facts of that case, to act in his own discretion and grant sanction".
In Yeddyurappa`s case, Jaitley alleged that an impression is being created that the two lawyers, who sought Bhardwaj`s permission to prosecute the Chief Minister, can file a criminal complaint against him and it is for the judge trying the cases to get the same investigated or to take cognizance of the offences.
"Ordinarily, sanction is required under Section 197 of the Code of Criminal Procedure and Section 19 of the Prevention of Corruption Act, only at the stage of taking cognizance of the offence and not at the stage of filing of a complaint," Jaitley said in a statement.
He insisted that the Governor has "chosen to precipitate the matter of granting a sanction even when the stage for taking a cognizance of the offence has not reached", only to create an adverse environment against the Chief Minister.
While alluding to Bhardwaj`s actions being motivated by "political and collateral" considerations, the eminent lawyer sought to know whether without an investigative process or judicial proceeding finding a Chief Minister prima facie guilty of an act of corruption can a Governor grant sanction to a private citizen to prosecute him.
Jaitley maintained that only when the guilt is proved, the sanction to prosecute a Chief Minister should be given by the Governor.
"This is all the more relevant because in a federal polity where the Governor is an exclusive appointee of the Central Government. The practice of appointing politicians as Governors has increased," he said.
The senior leader alleged that without waiting for the ongoing investigations or judicial inquiry to be completed, Bhardwaj has acted as an investigator and sanctioned prosecution against the Chief Minister.
"If this practice increases it would be very easy for the Central government to destabilise state governments," he said.