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In Lavalin,Kerala Governor has SC ruling on his side

Governor R S Gavai will find support on his decision to give CBI sanction to prosecute Vijayan — in a Supreme Court ruling five years ago.

Written by Maneesh Chhibber | New Delhi |
June 11, 2009 12:22:48 pm

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.

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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.

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