The Governor has no power to order prosecution of a Chief Minister if the Council of Ministers has advised him not to do so. The earlier view taken in A.R. Antulay's case where Maharashtra Governor Latif had advised the then Chief Minister's prosecution was upheld by the Supreme Court on a submission made in the High Court that the Governor had the power to do so. And that was not interfered with by the Supreme Court.

The Chief Minister is responsible to the Legislative Assembly and it is for the Legislative Assembly to show a lack of confidence in him if it so chooses on the ground of his corrupt act.

The Governor is a constitutional head and must act on the aid and advice of his Council of Ministers. In a Constitution Bench decision of the Supreme Court in 2004, the court had unequivocally said that unless the Council of Ministers disabled or disentitled itself to take a decision about whether the Chief Minister should or should not be prosecuted, the Governor "may not have any role to play".

Even if the Governor invokes some residual power in himself, he must then offer to resign and then things will take care of themselves and the courts will then decide whether he has the power to order such a prosecution on his own. This is the only way in which Governors can keep out of politics.

The Governor must leave the political parties to go to court for a direction that he is empowered to sanction prosecution of the Chief Minister even though he is a constitutional head and the Chief Minister and the Council of Ministers are responsible to the Legislative Assembly.

Besides, the matter was to be determined by Karnataka Lokayukta Justice Santosh Hegde and it does not appear that he has recommended to the Assembly that the Chief Minister should be prosecuted: if he had done so, then technically speaking, as the appointing authority, he could, perhaps, relying on the recommendation of the Lokayukta, have ordered the sanction to prosecute the Chief Minister.

However, there may be some scope for the Governor on some notions of his own residual power to grant sanction. But in the absence of such a recommendation from the Lokayukta, it would be improper and not constitutional for the Governor to act on his own.

(As told to V Eshwar Anand)