New Delhi, Monday, August 31, 2009: The Apex Court will today consider a petition moved by CPM state secretary Pinarayi Vijayan challenging Kerala Governor RS Gavai’s decision to prosecute him the SNC Lavalin scam and to nullify the charge sheet filed by CBI against him.

The Division bench constituting RV Raveendran and B Sudharshan Reddy will hear the petition.

Senior Supreme Court Advocate Fali Sam Nariman will represent CPM state secretary Pinarayi Vijayan, and Harish K Salve, former attorney general will appear for Government in the case.

In a writ petition,. Pinarayi Vijayan challenged the Governor’s order, citing 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.

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.