Decisive decision and its controversy

Kerala Governor R.S Gavai‘s by using the executive power under article 163 of Indian constitution granted permission to prosecute the Communist party of India (Marxist)’s State Secretary Pinarayi Viyayan in the SNC Lavalin case turn as a controversial issue. Under section 197(1) (b) of Crpc the permission from the government is necessary to prosecute a public servant. Prior approval of the authority u/s197 (1) of Crpc to prosecute the public servants cannot look as immunity but it is to check unnecessary harassment and vexatious litigation. This section gives protection to a person who is a public servant at the time of the alleged offence taken place and the offence committed at the time the accused was engaged in his official duty. The crucial node made by the Governor is against the advice of the cabinet ministers.CPI (M) secretary is 7^th accused in this case. (Case is about irregularities in awarding a contract to Canadian company SNC Lavalin for renovation and modernization of three plants when he was the state power minister 1998) .The offence alleged against him are under section 120(b), 420, and u/s 13(1) (d) of the prevention of corruption Act, 1988. This is the first time a politburo member has been accused in a multi-million rupee scam.

Controversial question is whether gubernatorial office has the power to turn down the advice of the cabinet and allow permission to prosecute a public servant? Is it actually exploiting the position? Some source says that Governor is bound to go wholly by the cabinet‘s advice in granting permission for the prosecution of a public servant. Additional materials sought by the governor from the CBI in order to get support his own decision to grant sanction is also a controversy.

Apex Court precedents is there to support the Governor’s action .In a land mark judgment of five judge constitution bench of supreme court headed by justice N.Santosh Hegde clearly stated that the Governor have the authority to independently examine whether a prima facie case existed and was not bound to go by the advice of the cabinet. The Apex court also observed that the high authorities like the council of ministers normally act in bonafide manner and in accordance with law, the Governor would be right on the fact of the case, to act in his own discretion and grant sanction were on facts the bias become apparent and the decision is to be irrational. The observation is against the concept that the Governor is only the titular head of the state and his authority derives solely from the council of ministers.

Is the existence of the material evidence or the political status or the advice from personalities or statutory power or the discretionary power, which want to be considered by gubernatorial office when a matter comes before him? The facts and circumstance shows that the governor not act according to his discretion, he has done his act only after clearly verify all the material evidence. 

 If discretionary powers used by high authorities which leads to a situation where people in power may break the law with immunity safe in the knowledge that that they will not be prosecuted as the requisite sanction will not be granted. Three wings of the democracy have their own duty to upheld constitutional value and the principle of the rule of law. Now the entire matter flies from executive to judiciary. The question arises is, in democratic country the ultimate supremacy is vested with whom?  Is it with people’s representative or with a nominated? Wait and see how the law is going to be interpretated.