As the CPM leadership questions the legality of the decision of Kerala Governor RS Gavai to give sanction to the CBI to prosecute CPI (M) state secretary Pinarayi Vijayan in a graft case despite the state government?s advice to the contrary, legal experts have joined the debate.
According to senior Supreme Court lawyer P P Rao, the Supreme Court settled the law on the issue in 2004 when it ruled that a Governor could accord sanction for prosecution of a minister or public servant even after the council of ministers is opposed to the same.
The judgment, delivered by a Constitution Bench comprising Justices N Santosh Hegde, S N Variava, B P Singh, H K Sema and S B Sinha, upheld the decision of the then Madhya Pradesh Governor to sanction the prosecution of two former state ministers even though the council of ministers had decided not to accord sanction for their prosecution on the ground that no prima facie case was made out against them.
In doing so, the Supreme Court also set aside a judgment of the Madhya Pradesh High Court, which had held the Governor?s action untenable.
The apex court ruling said, ?If the Governor cannot act in his own discretion there would be a complete breakdown of the rule of law as much as it would then be open for governments to refuse sanction in spite of overwhelming material showing that a prima facie case was made out.?
The Bench held that ?democracy itself will be at stake? if the government refuses sanction for prosecution in matters where there is a prima facie case for prosecution.
But constitutional expert and former Supreme Court Judge V R Krishna Iyer is critical of the Governor?s action. ?The grave issue shaking the Constitution in its conscience is whether the Governor in his discretion can dismiss the Cabinet?s decision, defeat and govern the state by his opinionated view. If he can do so in one case, calling it irrational or biased, he can overrule every Cabinet decision,? says Iyer.