A Volte-Face on Gubernatorial Power

Today's lead editorial was quite amusing to read. The language has been carefully chosen to only make insinuations against the Kerala governor R.S.Gavai without offering any reasons why his decision to allow the prosecution of Pinarayi Vijayan was wrong. It starts off thus:

Something is clearly amiss in the motivation, manner, and timing of Governor R.S. Gavai’s grant of sanction to the Central Bureau of Investigation to prosecute Communist Party of India (Marxist) Kerala State secretary Pinarayi Vijayan in a corruption case. The State Cabinet, acting on the basis of the views expressed by the Advocate General, advised against giving permission for prosecution in the case. But the Governor chose to ignore the advice and gave the go-ahea d to the investigating agency in the long-pending SNC-Lavalin case. Independent of the issue of whether or not he was bound to go wholly by the Cabinet’s advice in granting permission for the prosecution of public servants, the Governor should have shown scrupulous caution and less discretion, given the twists and turns of the case in keeping with the changes in the political landscape of Kerala. Instead of accepting or rejecting the CBI’s request on the basis of the material originally submitted by it, Mr. Gavai went out of his way to obtain additional material as evidence in order to buttress his own decision to grant sanction in the face of government’s advice to the contrary. The hidden political hand at work is that of the Congress, which heads the government at the Centre and is the main opposition party in Kerala.

First of all, we are told that something is amiss in the 'motivation, manner and timing' of the decision. As for the timing, the governor has done so only after the election and so, cannot be accused of trying to influence the polls. Indeed, that fact might have actually benefited the CPI(M).

Regarding the manner, the editorial insists that he made two mistakes: firstly that he rejected the considered advice of the Cabinet and secondly that he sought additional material from the CBI 'in order to buttress his own decision to grant sanction in the face of the government's advice to the contrary'. With regard to the first point, it does not explicitly claim that he acted illegally, only that 'he should have shown scrupulous caution and less discretion'. As for 'scrupulous caution', that is precisely what he showed by seeking additional clarifications from the CBI regarding the material it had earlier presented to him. But that again is held against him by claiming that he was doing so only to buttress a predetermined conclusion, an allegation about which zero evidence is presented. The implied meaning is therefore quite clear: any decision the Governor made contrary to the advice of the cabinet would be indicative of a lack of scrupulous caution and an act involving unwarranted discretion.

That brings me to the next and related question. Did the governor have the legal authority to override the advice of the State Cabinet? The editorial carefully sidesteps this question only noting thus: 'Independent of the issue of whether or not [the Governor] was bound to go wholly by the Cabinet's advice in granting permission for the prosecution of public servants...'. Two out of the three letters to the Editor that have been printed (the majority of which, I have generally observed, reflect support for the editorial position) also ask the same question quite innocently. In reality, the question was settled five years ago by a constitution bench of the Supreme Court in Madhya Pradesh Special Police Establishment v. State of Madhya Pradesh and Others where it ruled clearly that the Governor had the authority to independently examine whether a prima facie case existed (or not) and was not bound to go by the advice of the cabinet. That case was very similar to the present one: it concerned two ministers of the Digvijay Singh government who faced charges of involvement in a land scam but the Congress government had refused sanction. Notwithstanding this, the NDA-appointed governor at the time had granted sanction for their prosecution and the matter ended up in the courts whereupon the Supreme Court held in favor of the Governor.

What is relevant here is not the merits of that judgment but what the Chief Editor thought of it at the time. Indeed not only was he fully aware of it but he considered it important enough to dedicate an editorial to it wherein he wrote the following (I quote excerpts):

The Supreme Court's judgment on the powers of Governors to sanction the prosecution of State-level Ministers is significant in at least two ways. First, by upholding the right of a Governor to override the Council of Ministers in according such sanction, the Constitution Bench has broadened the discretionary powers of heads of States in a substantial and far-reaching way. Secondly, the Court, through its compact and tightly argued 25-page judgment, has clearly defined the limits of a Governor's power in according sanction to prosecute — an issue over which hung a cloud of legal confusion...[emphasis added]

In upholding the Governor's order — and thereby setting aside two judgments of the Madhya Pradesh High Court, which held that a Governor cannot exercise the function of sanctioning prosecution "in his discretion" — the apex court has signaled that politicians in Ministerial office can no longer break the law with impunity in the knowledge that they will not be prosecuted. Provisions in the law that prevent courts from taking cognisance of charges against public servants without prior approval of the appropriate authority (such as Section 197 of the CrPC and Section 19 of the Prevention of Corruption Act, 1988) are ostensibly intended to shield this class of people from unnecessary harassment and vexatious litigation. The so-called immunity clauses, however, are often relied upon to abort the very process of justice. In the Madhya Pradesh case, the office of the Lok Ayukta, occupied by a former High Court judge, had conducted a detailed inquiry before concluding there were prima facie sufficient grounds to prosecute the two Ministers. Given this background, it is certainly suspicious that the State's Council of Ministers rejected sanction for prosecution on the ground that there was "not an iota of material" against the two Ministers. As the Supreme Court observed, "there would be a complete breakdown of the rule of law" if a Governor could not act on his own discretion in such circumstances.

The Court's judgment makes it clear that Governors do not enjoy powers to accord prosecution sanctions suo motu; they may act only when the Council of Ministers behaves in a way that "disables or dis-entitles itself." In other words, it is "on those rare occasions where, on the facts, the bias becomes apparent and/or the decision of [the] Council of Ministers is shown to be irrational... [that] the Governor would be right ... to act in his own discretion and grant sanction."

Three things may be observed here quite clearly: (1) The Editor approved of the increased gubernatorial discretion granted by the Supreme Court (2) He believed the opinion had 'clearly defined the limits of a governor's power to prosecute' and thereby ended the confusion that prevailed and (3) He also viewed the immunity clauses as an impediment to the process of justice.

Contrast all of these observations with the words from today's editorial: (1) 'Something is clearly amiss in the motivation, manner, and timing of Governor R.S. Gavai’s grant of sanction to the Central Bureau of Investigation to prosecute Communist Party of India (Marxist) Kerala State secretary Pinarayi Vijayan in a corruption case...' (2) 'Independent of the issue of whether or not he was bound to go wholly by the Cabinet’s advice in granting permission for the prosecution of public servants, the Governor should have shown scrupulous caution and less discretion, given the twists and turns of the case in keeping with the changes in the political landscape of Kerala.' Note also the absence of any comment on how the immunity clauses obstruct justice. Instead we are treated to a discourse on how Central governments abuse the office of the Governor for partisan ends, something entirely missing from the earlier write-up.

What explains this double standard or change of heart? The only explanation I can think of is that in the present case unlike the previous one, the CPI(M) has an important stake.