Iyer now wants the Governor to dismiss Kerala Government Monday, Jun 22 2009 

krishnaiyerFormer Supreme Court Judge V. R. Krishna Iyer has done that again. He has written an article in the New Indian Express suggesting that the Governor should act to the end collective irresponsibility of Kerala Government. While appreciating the validity of Mr. Iyer’s legal points, KeralaViews wants to highlight the complexities and contractions involved in Mr. Iyer’s advice.

Last time, Mr. Iyer wanted the Governor not to act against CPI (M) State secretary Pinarayi Vijayan by sanctioning the CBI’s request to prosecute Mr. Vijayan in a corruption case. His argument was that the Governor did not have the discretionary powers to reject the Cabinet’s advice against prosecution of Mr. Vijayan.

This time Mr. Iyer wants the Governor to act against the Chief Minister V. S. Achuthanandan and dismiss his Cabinet for failing to exercise collective responsibility (in making its recommendation?) What Mr. Iyer wants the Governor to exercise now is indeed a discretionary power which the English Queen will hesitate to exercise even under utmost provocation. (If Cabinet did not show collective responsibility regarding  its decision to recommend against prosecution of Mr. Vijayan, that should be reckoned as a good reason for the Governor to use his discretion in the matter)

Earlier, Mr. Iyer had wanted the Governor not to exercise his discretionary powers and act in aid of an alleged attempt to undermine the rule of law. Rule of law is fundamental not only to the Constitution but to any system of governance, whereas the discretionary power that Mr. Iyer wants the Governor to exercise now is only a Constitutional principle that is open to different interpretations.

The pleasure principle is something that should be invoked with due circumspection and fair judgment of the situation. The Governor cannot easily dismiss a government even in the case of break down of the rule of law. If the Governor has erred in sanctioning prosecution of Mr. Vijayan, he will be erring more seriously if he dismisses the Chief Minister.

This is not to say that the Achuthanandan Government has a right to continue. KeralaViews has said that the Achuthanandan Ministry had breached collective responsibility much before Mr. Iyer wrote about that. However, as stated in an earlier post, Cabinet Ministers are appointed by the Chief Minister and he has every right to drop Ministers who do not enjoy his confidence. So, if Ministers breach the principle of collective responsibility, it is for the Chief Minister to take action. If it is the Chief Minister himself who is responsible for the situation, it is for the Legislative Assembly to express no confidence in him. Mr. Iyer himself notes, quoting Kashyap, that the Council of Ministers is collectively responsible to the House of People.

If the Achuthanandan Government is continuing in office despite the gross breach of constitutional principles, it is the Legislature that should hold the Government accountable. The Governor is to act only if the legislators fail to exercise their legitimate role for want of moral authority or other reasons. Then, what the Governor should do is not only to dismiss the Government, but also to dissolve the Assembly, paving way for the people to elect a responsible Government. However, when the legislators are not acting, the Governor is in a position similar to Bhishma, who had to remain silent when Panchali was dishonoured. Dharma is subtle, Bhishma said.

Like his previous article, this article of the Mr. Iyer is a double edged sword.

Related:

Cacophony of Kerala Cabinet on Display in Legislature

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CPI-M again challenging rule of law Sunday, Jun 7 2009 

Kerala Governor R. S. Gavai

Kerala Governor R. S. Gavai

The CPI (M) is challenging the rule of law by observing a black day against decision of the Governor R. S. Gavai sanctioning prosecution of CPI (M) State secretary Pinarayi Vijayan.

The issue here is not Mr. Vijayan’s innocence or guilt, but the requirement that he should stand trial like any citizen of this country. Even bias in the investigation is not a valid justification for trying to undermine the due process of law. Everyone is equal before law. In the case of Mr. Vijayan, the CBI investigation was directly supervised by a court of law and prima facie a case has been established.

The Constitutional provision requiring prior permission of the Governor for prosecution of people for anything done in their capacity as Ministers is merely intended to ensure that those who held such positions are not unnecessarily harassed for bona fide action taken in the discharge of their duties. It is not an instrument to protect people from the consequences of wrong doing.

What the CPI (M) is doing now is reminiscent of what Indira Gandhi did after she was unseated by the Allahabad High Court for electoral malpractices. She changed the law to save herself and declared emergency to stay in power. Mr. Vijayan is using Government machinery and the party machinery to save himself from the due process of law. The party is directly challenging a Constitutional authority. The organisational power of a political party is not to be misused to save an individual.

If the illiterate people of India could deliver a crushing defeat to Indira Gandhi, the fate awaiting the CPI (M) is clear. In fact, the people has already spoken through the Lok Sabha elections.

Chief Minister VS embraces constitutionality Tuesday, Feb 3 2009 

Chief Minister V. S. Achuthanandan with a few of his Cabinet colleagues

Chief Minister V. S. Achuthanandan with Cabinet colleagues

Chief Minister V. S. Achuthanandan has taken an unassailable position. He has stated that he is not only a party functionary but also a Constitutional functionary elected to carry out Constitutional duties. The call of duty finds him at variance with the party policy.

This is something unprecedented in the CPI (M). Under communist rule, party controlled the Chief Minister not the Constitution. He hardly ever carried out his duties without fear or favour towards the party. Now, Achuthanandan, the staunch communist, has defied the communist tradition with immense consequence to the party.

Though party principles and Constitutional principles were at odds with each other, it did not cause much of a problem when E. M. Sankaran Namboodiripad was the Chief Minister. Nor did it as long as Naboodiripad was the doing the backseat driving for E. K. Nayanar. However, corruption started to rule the roost at various levels when party proxies with no Constitutional positions started running the government from behind. All the present day problems of the party including the SNC Lavalin case had their origins during that period.

So, Achuthanandan’s proposition that he and his Cabinet should be allowed to carry out their Constitutional duties is good for the party and the government. There is nothing worse than power without responsibility, of extra constitutional entities running the government. Party machinery could become self serving. It is more difficult for the government machinery to become one like that. So, the writing on the wall is that communist parties should change their party principles to accommodate certain separation of powers between the party and Constitutional functionaries unless Achuthanandan is not to be tempted to follow the path of Lok Sabha Speaker Somanath Chatterjee with some variations.

However, Achuthanandan’s present stand is not without consequence to himself and the Cabinet. Achuthanandan has implied that his Ministers are not towing the Constitutional line he is adopting. So, according to the very Constitutional principles he is upholding, he has to drop the Ministers who refuses to act according to the Constitution. However, if he does not have majority support in the Assembly, he will have to resign. Thus, Achuthanandan’s principled positions cannot be maintained without a cost and his victories would turn out to be limited.