[Reader-list] The Pinarayi Vijayan-Lavalin case

[Rakesh Iyer]

Dear Venugopalan jee (and all)

You had stated in one of your mails that the action taken by the Kerala
Governor, to prosecute Vijayan, against the advice of the council of
ministers, is wrong for the Constitution doesn't allow one to do so. I am
pleased to inform you that in such cases, the Governor can actually go
against the advice of the Council of Ministers and allow prosecution, as per
a judgement by the Supreme Court in 2004. For more, read this article put
below.

Regards

Rakesh

Article: (From Indian Express)

Link:
http://www.indianexpress.com/news/in-lavalin-kerala-governor-has-sc-ruling-on-his-side/474586/0

In Lavalin, Kerala Governor has SC ruling on his side

*New Delhi:* The CPM leadership questions the legality of Kerala Governor R
S Gavai’s decision to overrule the state Government and give CBI the
sanction to prosecute party state secretary Pinarayi Vijayan in an alleged
corruption case. Gavai will find support — in a Supreme Court ruling five
years ago.


“It makes it clear that a Governor can accord sanction for prosecution of a
minister or any public servant even if the Council of Ministers is opposed
to it,” says senior Supreme Court lawyer and constitution expert P P Rao.


The judgment, delivered by a Constitution bench of Justices N Santosh Hegde,
S N Variava, B P Singh, H K Sema and S B Sinha on November 5, 2004 in the
case Madhya Pradesh Special Police Establishment versus State, upheld the
decision of the then Madhya Pradesh Governor Bhai Mahavir to sanction the
prosecution of two former state ministers even though the council of
ministers — then headed by Digvijay Singh — had decided not to accord
sanction claiming that no prima facie case was made out against them.


In doing so, the Supreme Court set aside a judgment of the Madhya Pradesh
High Court which held the Governor’s action untenable.


The apex court ruling was categorical: “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 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 Bench also ruled that “on those rare occasions where on facts the bias
becomes apparent and/or the decision of Council of Ministers is shown to be
irrational and based on non-consideration of relevant factor, the Governor
would be right, on the facts of that case, to act in his own discretion and
grant sanction”.


In the same matter, a single Judge of the Madhya Pradesh HC held that
granting sanction for prosecuting the Ministers was not a function which
could be exercised by the Governor “in his discretion” within the meaning of
these words as used in Article 163 of the Constitution of India. It was held
that the Governor could not act contrary to the “aid and advice” of the
Council of Ministers. But while the Division Bench went with the view of the
Single Judge, the SC took a dim view of this reasoning.

 - Manish Chhibber