Cabinet demonstrates gross irresponsibility Thursday, Apr 8 2010

The Kerala Governor’s address to the Assembly this year, which did not, truly, had the approval of the State Cabinet points to gross irresponsibility.

The Chief Minister, V. S. Achuthanandan, has denied that the speech did not have the approval of the Cabinet. However, facts that had come out through information obtained under the Right to Information and Act and widely reported in the media suggests that the Chief Minister taking refuge in the fact that a Cabinet subcommittee had finalised the speech on authorization from the Cabinet. However, this has no constitutional validity according to the Opposition.

However, the incident is a symptom of a chronic disease. KeralaViews has written in the past about the lack of collective responsibility and deterioration if not absence of governance. It has also written about the itinerant Ministers who hardly attend to the job they had been entrusted with. And the Assembly failing to keep a tab on the Government. Having failed in administering the State properly, the Ministers are now turning to large scale distribution of benefits including title deeds for land to win the coming elections.

The Cabinet has actually shown disrespect to the Assembly by sending the Governor to the House with a speech that the Cabinet Ministers had not cared to read and approve. It can even be considered a breach of privilege of the House whatever be the explanation that would be offered by the Chief Minister.

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

Former 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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LDF seeing reason Monday, Jun 15 2009

The LDF is seeing reason. However, it is still far from convinced that the Governor R. S. Gavai did his constitutional duty.

Egged by parties such as the CPI and RSP, the CPI (M) has resolved itself to take the legal course in the SNC Lavalin case win which party State secretary Pinarai Vijayan is the seventh accused. They still say that the Governor acted without authority. According to the CPI (M), the Governor is an official of the Central Government. If it cared to look at the Constitution, it can be seen that the Governor is not an official but a Constitutional authority and Supreme Court verdicts show that he had discretionary powers to allow the prosecution of Mr. Vijayan disregarding the opinion of the Cabinet.

All this shows that the LDF is far from redeeming itself after the crushing defeat in the Lok Sabha elections. Though they acknowledge that the SNC Lavalin case played a role in their losing public support, they are unwilling to change their policies. Instead, they are trying to hoodwink the public by raising technicalities of the Governor’s decision.

It is also notable that a section of the leaders in both the CPI and the RSP is in favour of the line of official faction of the CPI (M). This is suppressing a rebellion by the others.

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

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.

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Bhishma(Krishna Iyer)’s advice in SNC Lavalin case Thursday, May 14 2009

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.

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