In governors vs states, SC sends an unambiguous message

An appointed Governor is a constitutional relic, carried over from the colonial times. Indian provinces were ruled by Governors who reported to the viceroy at the Centre, who in turn reported to the secretary of state for India. This model served British India up to 1935.

The passage of the Government of India Act 1935 established elected provincial legislative assemblies. However, to ensure that the overriding power remained with the British, the Act retained the post of the Governor with vast discretionary powers.

The Indian Constitution, which is largely modelled on the Act of 1935, did not do away with the office of the Governor, but left it with little power.

Faced with differing perceptions in the Constituent Assembly, Dr BR Ambedkar said: “The first thing I would like the House to bear in mind is this: The Governor under the Constitution has no functions which he can discharge by himself; no functions at all… even under this article, the Governor is bound to accept the advice of the ministry. Therefore, the criticism that has been made that this article somehow enables the Governor to interfere or to upset the decision of the Cabinet is entirely beside the point, and completely mistaken.”

Despite Ambedkar’s formulation, the office of the Governor has always remained a potent weapon in the armoury of an overbearing Centre. It did not help that gubernatorial appointments were largely confined to the political classes.

The role and functions of the Governor as envisaged by the Constitution was that he was the key actor in the Centre-State relations. The Constitution provides that the executive power vested in him under Article 154 must be exercised by him with the aid and advice of the council of ministers.

However, Governors, like the President, only reign; they do not rule.

In 1974, the Supreme Court, in Shamsher Singh’s case through Justice Krishna Iyer, ruled: “In short, the law of this branch of our Constitution is that the President and Governor, custodians of all executive and other powers under various articles, shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their ministers, save in a few well-known exceptional situations.

Without being dogmatic or exhaustive, these situations relate to (a) the choice of the Prime Minister (Chief Minister), restricted though this choice is by the   paramount consideration that he should command a majority in   the House; (b) the dismissal of a government which has lost its majority in the House but refuses to quit office; c) the dissolution of the House where an appeal to the country is necessary, although in this area the Head of state should avoid  getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step.”

Against this constitutional backdrop, it is hardly surprising that the Supreme Court has looked askance at the conduct of Governors of Kerala, Punjab and Tamil Nadu, where state governments have petitioned the top court alleging that Governors have simply sat on legislation that require their clearance.

It has pointed out that “the proviso to Article 200 stipulates that the Governor may as soon as possible after the presentation of the Bill for assent, return the Bill, if it is not a Money Bill, together with a message requesting that the House or Houses may reconsider the Bill or any specific provisions. If the Bill is passed again by the House or Houses, the Governor, it is provided, shall not withhold it”.

In the Tamil Nadu case, the court noted that at least 12 Bills had not elicited any action and, therefore, issued notice to the Union home ministry, which appoints Governors and conveys the instructions of the Union government.

Governor R N Ravi has, thereafter, returned 10 Bills and is yet to take action on two more Bills. A special session of the TN Assembly has been called to pass the Bills again. It ill behoves a very high constitutional authority like the Governor to be prodded into doing his or her duty by the highest court.

A few months ago, Telangana Governor Tamilsai Sounderrajan had also been similarly reminded. Punjab Governor Banwarilal Purohit has been pulled up for not signing Bills. Governor Arif Mohammed Khan has also been taken to the Supreme Court by the Kerala government.

The message from the Supreme Court is clear: elected governments must be allowed to rule and cannot be thwarted by unelected Governors.

The Centre must remember that in a quasi-federal structure, it appoints Governors as facilitators of the constitutional process and not as an overlord Governor-General answerable only to the Centre. Constitutions are meant to be operated in harmony and not become a discordant chorus of competing prima divas.

(The author is a senior advocate, Supreme Court of India)

Punjab Governor Banwarilal Purohit

Tamil Nadu Governor RN Ravi