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Monday, Jun 08, 2009
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Decision comes after elaborate exercise

P. Venugopal

THIRUVANANTHAPURAM: Kerala Governor R.S. Gavai’s decision on Sunday to allow the Central Bureau of Investigation to initiate prosecution proceedings against CPI(M) State secretary and former Electricity Minister Pinarayi Vijayan in the SNC-Lavalin case comes at the end of an elaborate exercise that lasted nearly five months in the latest round.

On January 17, 2009, the Governor, soon after receiving the CBI’s request for permission under Section 197(1) (b) of the Code of Criminal Procedure to prosecute Mr. Vijayan, sought the CPI(M)-led Left Democratic Front (LDF) government’s advice.

The CBI had implicated Mr. Vijayan and nine officials attached to the State Power Department and the Kerala State Electricity Board (KSEB) in the case after taking over the investigation following a judgment of the High Court in a public interest litigation moved by a journalist, T.P. Nandakumar.

The case related to a project costing Rs. 374 crore for the renovation and modernisation (R&M) of the hydro-electric stations located at Pallivasal, Chengulam and Panniar in Idukki district, taken up by the KSEB during the period 1996-1998 when Mr. Vijayan was the Electricity Minister.

SNC-Lavalin, a Canadian engineering and construction group that was awarded the supply contract for the project, had promised the State government a grant of Rs. 98 crore as part of the package to establish a cancer hospital at Thalasserry in Kannur district. The charges of corruption and conspiracy hinge principally on how the company wriggled out of that promise. An amount of Rs. 86 crore out of the promised grant did not reach the cancer hospital.

Earlier, the Comptroller and Auditor General of India (CAG), in his report for the year 2005 published in 2006, had found irregularities in the execution of the R&M project. The CAG remarked that the entire amount of Rs. 374 crore spent on the project had gone waste since the performance of the hydro-electric stations did not improve after the R&M exercise.

The CBI, in its report submitted to the High Court (which was monitoring the progress of the investigation) in January 2009, implicated Mr. Vijayan as the ninth accused in the case. It charged him with the offence of criminal conspiracy under Section 120(B) and the offence of cheating under Section 420 of the Indian Penal Code (IPC), in addition to the offence under Section 13(1)(d) of the Prevention of Corruption Act, 1988.

Prosecution under IPC charges required the Governor’s sanction in the case of Mr. Vijayan, since he was a Minister at the time of committing the alleged crime.

On receiving the Governor’s request for advice, the State government asked Advocate General C.P. Sudhakara Prasad to give his legal opinion.

In the meantime, an organisation called People’s Council for Civil Rights challenged before a Division Bench of the High Court the need for Governor’s sanction at all. The High Court, on February 12, ruled that sanction of the Governor on behalf of the government was necessary. The High Court urged the government to take the decision within three months, but said it could seek from the court more time, if it was unavoidable.

In the same order, the Division Bench expressed the hope that the Council of Ministers and the Governor would apply their mind independently to the facts of the case before taking the decision, and directed that “the Council of Ministers should also act independently, despite political compulsions.”

The Advocate General gave his legal opinion to the government on May 2: that the CBI report was devoid of any material to implicate Mr. Vijayan. On the basis of the legal opinion, the Council of Ministers headed by CPI(M) Polit Bureau member V.S. Achuthanandan advised the Governor against allowing the CBI to prosecute Mr. Vijayan.

The Congress-led United Democratic Front, which is in the Opposition in Kerala; P.C. George, MLA; and several organisations in the State submitted memoranda to the Governor saying that the AG and the Council of Ministers were not applying their mind to the issue independently and were working with “bias” and under “political pressure.”

The Governor came to his decision after consulting several legal experts within and outside the State and after calling for more details of the case from the CBI.

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