Kerala HC order against Pinarayi Vijayan raises natural justice questions, say legal experts
The Kerala High Court's direction to the Vigilance and Anti-Corruption Bureau to register a first information report (FIR) against former Chief Minister Pinarayi Vijayan, his daughter T. Veena and his son-in-law and MLA P.A. Mohamed Riyas has prompted legal experts to raise wider questions about natural justice and about court orders that appear to pass over statutory requirements of law.
The order was passed by a single judge who heard the petitioner, K.M. Shajahan, and the Enforcement Directorate (ED), which had written to the State government seeking registration of an FIR against the three. None of the three, however, was given an opportunity to be heard. Judicial sources note that denial of a hearing can be construed as a denial of natural justice, and would legally allow Mr. Vijayan and the two others to challenge the order before the High Court or the Supreme Court.
Some legal experts also point out that the single judge's order did not address Section 17(A) of the Prevention of Corruption Act, which requires police officers to obtain prior approval from the competent authority before conducting an inquiry into offences alleged to have been committed by public servants in the discharge of their official functions.
The provision was introduced through an amendment in 2018 as a safeguard for government servants against unnecessary litigation that could deter them from discharging their duties honestly and fairly. Whether a court can overlook such a statutory requirement is itself pending before the Supreme Court. The question was referred to a larger Bench after the judges who heard the challenge delivered differing judgments. Legal sources indicated that the legality of the single judge's direction to register the FIR could therefore also be contested before an appropriate forum.
The State government, represented by Advocate General K. Jaju Babu, had argued that the competent authority should have the option either to register an FIR or to conduct a preliminary inquiry after receiving information from the ED. With limited legal options left after the order, the State is unlikely to go on appeal, sources said. Had prior sanction been sought under Section 17(A), the State would have played a decisive role in the case, they added. The responsibility for challenging the order now rests with Mr. Vijayan and the two others.
On the next steps, Vigilance will have to register an FIR against Mr. Vijayan and Mr. Riyas under the provisions of the Prevention of Corruption Act. The ED could then use that FIR and the corruption allegations as a predicate offence to book them under the Prevention of Money Laundering Act (PMLA). The PMLA does not apply to Ms. Veena, who is not a public servant. The ED had proceeded against her on the basis of a criminal complaint filed by the Serious Fraud Investigation Office (SFIO) in connection with an alleged corporate fraud at Cochin Minerals and Rutile Limited (CMRL) and Exalogic Solutions Pvt. Ltd., a firm owned by her.
The fate of the case against Ms. Veena would depend on the outcome of a petition filed by CMRL before the Delhi High Court challenging the SFIO investigation.
It is important to note that the High Court's order does not amount to a finding of guilt. In Indian law, the registration of an FIR marks the beginning of an investigation, and those named are presumed innocent unless and until a competent court convicts them.
