New Delhi, Friday, December 18, 2009: Citing constitutional flaws in governor’s decision to give consent to prosecute CPM state secretary Pinarayi Vijayan in the SNC Lavalin case, the state government today moved an affidavit before the Supreme Court.

The affidavit also says that, the cabinet decision regarding this was appropriate and cabinet posses the right to take decision regarding the matter.

The affidavit was filed after Pinarayi Vijayan moved a writ petition before Court. challenging the Kerala Governor RS Gavai’s decision to prosecute him in the sensational 300 billion crores SNC Lavalin scam was returned by the Apex Court Pinarayi Vijayan cited that the Kerala Home Secretary as the only respondent.

He said the CBI had written a letter to the Governor seeking sanction for his prosecution under Section 197 of the Code of Criminal Procedure (Cr.PC) on February 2, 2009. The Governor referred the matter to the Cabinet, which on May 6 conveyed its decision that it was not necessary to grant sanction to prosecute him.

Though the council of ministers had declined to grant sanction to the CBI to prosecute Vijayan, governor of the state had subsequently granted the sanction under Article 163 (2) of the constitution to prosecute him in the case.

He said that despite this decision, the Governor, wrongly assuming that he had jurisdiction and power to grant sanction on his own (over-riding the decision of the Council of Ministers), issued an order on June 7 according sanction to prosecute him for the alleged offences under IPC Section 120 B, read with 420, and Sections 13 (2) and 13 (1) (d) of the Prevention of Corruption Act.

Pinarayi Vijayan said the question raised in this proceeding was whether the Governor of a State had any discretionary power to act on his own to grant sanction for the prosecution of a former public servant independently without the aid and advice of the Council of Ministers.

The petition contended that the order of the Governor was without the authority of law and ultra vires the Constitution.

Consequently, the personal liberty of the petitioner was threatened and jeopardised, he said and added that the Governor’s order directly contravened and violated his fundamental rights. Hence the petition for a declaration that the Governor’s order dated June 7 ultra vires the Constitution and a direction to set aside the charge sheet filed by the CBI on June 10 before the Special Judge, CBI, Ernakulam.

Pinarayi Vijayan is facing a CBI probe for his alleged role in awarding contract to a Canadian firm, SNC Lavalin, for renovation and modernisation of two hydropower plants in the state without competitive bidding.

The government official auditor had found that the contract by Kerala State Electricity Board to the Canadian firm, at the behest of the minister, had resulted in substantial loss to the state exchequer running into several crores of rupees.