Jurist V. R. Krishna Iyer has come out with an article criticising Opposition parties in Kerala for urging the Governor R. S. Gavai to take an independent decision on the CBI’s request for prosecution of CPI (M) leader Pinarayi Vijayan in the SNC Lavalin case (The Hindu dated. May 14).

This blog would not have attempted to look critically at the article of the former Supreme Court judge of such eminence, if Mr. Iyer himself had not provided the points to contradict him. (For Arjunas who want to fell Pinarai, these are Bhishma’s words. Hope Mr. Chandy and his lieutenants would make use of them).

Mr. Iyer says, quoting a Supreme Court verdict, that Governor as the British Queen is bound to follow the Cabinet’s advice except in rare exceptions in which the Cabinet decision is irrational or arbitrary or perverse or plainly and blatantly biased or mala fide.

He further adds:  “In the present case, unless an exceptional situation has arisen, or the Cabinet decision is irrational, manifestly biased or intentionally calculated to save a constitutional authority, the rule that the tenant of the Raj Bhavan is bound by the Cabinet ruling and the Governor cannot substitute his separate judgment or that of any jurists who may be his favourites to make the Cabinet’s clear resolution impotent, should prevail.”

He also says that the Advocate General has exonerated Mr. Vijayan. Unless there is some manifest bias on his part in Mr. Vijayan’s favour, the Cabinet should adopt his advice.

Now, all that the Governor has to do is to look at the circumstances of the Cabinet decision if he wants to find the justifications needed for using his discretion.

Let us look at a few of the criteria offered by Mr. Iyer:

Irrationality: Is it not irrational for the Advocate General to exonerate an accused in a case investigated by a legally constituted body (CBI)? Trial and acquittals are the domain of courts, and not the Advocate General. The Advocate General took the decision without seeking all the documents he had called for and the Cabinet says that it took the decision after examining all the “available” documents.

Manifest bias: This is clear from the sequence of things from the party secretariat’s repeated interventions and the political pressure on the Chief Minister V. S. Achuthanandan. Calculated actions of the CPI (M) to thwart prosecution was evident and the Chief Minister had stood against that.

Intentionally calculating: Do we need any more proof for that than the conduct of the CPI(M) leaders and their statements?  But the Governor may find it difficult to get all that documented.

Mala fide: If reported remarks of CPI leaders are to be believed, the Cabinet had also decided to exonerate the officials involved without the full knowledge of at least the CPI Ministers.

Mr. Krishna Iyer suggests that the Opposition could call the Advocate Genereal to the Assembly to seek clarifications about his advice. However, even the Chief Minister was not able to do so. His suggestion in this regard was reportedly turned down by the other  (intentionally calculating?) Ministers.

It is to be noted that the recommendation of the Cabinet regarding prosecution of a former member of the Cabinet is different from the Cabinet’s advice to the Governor on other matters of the State. The Governor is the appointing authority of the Cabinet and it rules during the pleasure of the Governor. He exercises his discretion in calling party leaders to form Ministry. If one of the minister of his government commits a crime it should be the concern of the Governor.