[Reader-list] The Pinarayi Vijayan-Lavalin case

[Venugopalan K M]

Dear Rakesh,

Noted and thank you for sending the link; I guess the issue involved
is than just those of federalism as some experts maintained earlier.
Even the CM is reported to have spoken in support of the action of the
Governor, which again,makes my earlier comment problematic.
Thanks.
Venu.

On Thu, Jun 11, 2009 at 9:58 AM, Rakesh Iyer<rakesh.rnbdj at gmail.com> wrote:
> 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
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