Governor as catalyst, not inhibitor: When SC showed Raj Bhavan its place

Of late, we have gotten somewhat used to the Supreme Court coming out with judgments which are rather pedestrian in their legal acuity and vision, and even more which make us wonder whether those judgments have been rendered with a full grasp of facts, law and precedent.

In what can only be termed a very pleasant deviation, the Supreme Court delivered a historic, landmark judgment on April 8 regarding the powers of the governors of states.

In simple terms, the judgment categorically lays down that there are clear limits to the governor’s powers, that he cannot interminably delay or stall bills passed by the respective Assemblies, and most cuttingly that the governor has no discretionary power and has to follow the procedures of the Constitution to the letter.

A welcome verdict

The judgement came in a writ petition filed by the Tamil Nadu government in 2023, against Governor RN Ravi, who withheld assent for 10 bills, the oldest of them pending since January 2020, and reserving them to the President after they were re-enacted by the state legislature.

The bench comprising judges JB Pardiwal and JR Mahadevan found this action by the governor “illegal and erroneous” in law and liable to be set aside. Furthermore, any consequential steps which might have been taken by the President on the said 10 bills were also declared non-est in law, indicating that such steps are treated as non-existent or void due to a fundamental defect.

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Most crucially, the court also ruled that, given the arbitrary delay, they had “no choice” but to declare that the 10 Bills were deemed to have received the governor’s assent on the very date they were presented to him the second time.

Governor’s options

To leave no stone unturned, the bench also held that once a state legislature passes a Bill, the governor’s role under Article 200 of the Constitution is limited to three clear options: granting assent, withholding assent or reserving the Bill for the President’s consideration. Only one of these avenues can be availed by the governor and not two or more at the same time.

That is to say, if the governor receives a Bill, he can either give assent straight away or he can withhold it for a certain amount of time, in which case he has to return it to the Assembly. If the Assembly re-passes the bill, the governor has no other option but to give assent.

He cannot sidestep that responsibility and send it to the President again for assent. If at all he wants to refer the bill to the President, that should be done immediately on the receipt of the bill and not after considerable time has lapsed or if he has already sent it back to the Assembly.

The long and short of it is that the governor has three choices, but he can avail only one, not a mixture of two or more choices with the aim of delaying a bill passed by the legislature.

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Limits set for governors

Relying on the phrase “as soon as possible” in Article 200, the judges observed that it provides the provision with a clear sense of urgency and that it does not permit the governor to delay action indefinitely or wield a de facto veto over the legislative process through deliberate delays. To ensure this, a timeline was also set by the Court:

• If the governor decides to withhold assent or reserve the Bill for the president — on the aid and advice of the council of ministers — such action must be taken within one month.

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• If the governor reserves the Bill for the President, contrary to the advice of the council of ministers, this must be done within three months.

• If the governor withholds assent contrary to the advice of the council of ministers, the Bill must be returned to the legislature within three months.

• If a Bill is re-passed and re-presented by the legislature, the governor must grant assent within one month.

No discretionary power

Equally importantly, on the question of the governor’s discretion, the bench noted that the phrase “in his discretion” — originally present in Section 75 of the Government of India Act, 1935 — was deliberately omitted when Article 200 was drafted. This, according to the court, was a conscious decision meant to strip the governor of any discretionary power.

What is important about the judgment is that it puts an end, as much as it is possible short of a constitutional amendment, to the dubious role played for long by governors as the ostensible constitutional and executive heads of state governments, but also as the none too covert unconstitutional agents of the Central government, especially in those states ruled by a party of the opposition.

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Lingering conflicts

The conflict between governors and state governments is nothing new. If, earlier, the disputes were more to do with appointments of chief ministers, recognition of majorities, dismissals of government, dissolution of Assemblies and imposition of President’s Rule, the current battles revolve around determining when Assemblies are to be convened, obstruction of day-to-day administration, inordinate delays in assenting to bills passed by the legislature, making of adverse public comments that place the state governments in bad light and even in some instances running a parallel government.

These interferences have increased in both volume and intensity since the BJP came to power in 2014 and has proceeded to take a very hostile attitude to all opposition states.

A curious change that has come over the kind of people being appointed to governor positions should also be seen in association with this.

Then and now

Earlier, governors were mostly retired — or about to retire — politicians without much left in their political careers.

Or, as former governor of Gujarat and Jammu and Kashmir BK Nehru once described, they were “burnt-out superannuated members of the ruling party for whom a governorship was a kind of luxurious retirement”. This made them somewhat more mature, or at least less inclined to enter into prolonged conflicts with the state governments.

However, now, most often, active politicians, especially the aggressive, confrontational kind who still harbour great ambitions for further positions and power, are assigned these positions. These assignments then become a stage and opportunity for them to prove their loyalty and usefulness to the people at the Centre, and a way of staking claim for more plum positions of power.

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The ruling’s value

In the light of this continuing history of unsavoury gubernatorial interventions and all obstructions, what the judgment does is to show the governor his place.

For one, the judgment unambiguously affirms the inviolability of democratic systems in stating that governors cannot “thwart the normal course of lawmaking by state legislatures”. Following the court’s earlier decision in the case of Punjab (2023), the bench strongly rejected the notion that an “unelected governor” could wield an effective veto over “democratically elected legislatures”.

Second, the decision also upholds the sanctity of constitutional provisions, in stating that the governor’s decisions must not be coloured by political considerations. Instead, he must be guided by the sanctity of the constitutional oath. The governor must serve as a “catalyst and not an inhibitor”, in resolving conflicts and working constructively with the elected state government.

Third, without saying in so many words, the judgment also upheld the principles of federalism in stating that the governor must act in accordance with the “settled conventions of parliamentary democracy”. He is not a political actor, but a “friend, philosopher and guide”.

What the judges said

It would be worthwhile to quote from the judgment at length because, in recent times, there have been no statements that capture the essence of Indian democracy and federalism in such full measure:

“We are not undermining the office of the governor. All we say is that the governor must act with due deference to the settled conventions of the parliamentary democracy, respecting the will of the people expressed through the legislature as well as the elected government responsible to the people.

"He must perform his role of a friend, a philosopher and guide, with dispassion, guided not by considerations of political expediency but by the sanctity of the constitutional oath he undertook.

"In times of conflict, he must be the harbinger of consensus and resolution, lubricating the functioning of the state machinery by his sagacity and wisdom, and not bring it to a standstill. He must be the catalyst and not the inhibitor.

"All his actions must be taken keeping in mind the high constitutional office he occupies. It is imperative that all his actions must be guided by true allegiance to his oath and he faithfully executes his functions.

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“The governor as the constitutional head of the State is obliged to accord primacy to the will and welfare of the people of the state and earnestly work in harmony with the state machinery.

"The governor must be conscious to not create roadblocks or chokehold the state legislature in order to thwart and break the will of the people for political ends.

"The members of the state legislature have been elected by the people of the state as a result of the democratic outcome are better attuned to ensure the well-being of the people. Hence, any expression contrary to the express choice of the people, in other words, the state legislature, would be a renege on the constitutional oath.”

A major shake-up

There is little doubt that the verdict is going to have far reaching consequences in terms of the governor’s powers, the powers of the legislative assemblies, Centre-state relations, etc.

It will be less easy for the Centre to use the governor’s office to derail or subvert the legitimate businesses of states, though given the current dispensation’s proclivities, one can be sure that they will still find other means for that.

In the immediate view, the judgment is going to have tremendous repercussions for Kerala and West Bengal, both of which are engaged in a prolonged and often bitter battle with their respective governors.

Kerala ferment

In the case of Kerala, seven bills have been pending before the governor for various periods of time. As of November 1, 2023, when the State of Kerala filed a writ petition in the Supreme Court challenging the inaction of the governor of Kerala, three of the bills had been pending for more than two years and another three bills had been pending for over a year.

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Five of the bills are University Laws Amendment Bills, one is the Kerala Co-operative Societies (Amendment) Bill, which seeks to ensure stronger security for deposits in the wake of the Karuvannur Bank scam, and the seventh is the bill which seeks to amend the Kerala Lokayukta legislation.

The greatest bone of contention in all these bills is that they also seek to take away from the governor some powers that had been vested in him by way of earlier legislative acts but which Governor Arif Mohammed Khan, particularly, chose to misuse without the concurrence, and even at the express disapproval, of the state government.

Varsities in crisis

The University Amendments Bills seek to remove the governor from the position of the chancellor of the Universities of the State, a position that had been accorded to the governor, by virtue of his office, through several earlier legislations.

This came in response to several actions by Arif Mohammed Khan interfering with the affairs of the universities, culminating in him issuing orders of dismissal to seven university vice-chancellors, on the flimsiest of technical grounds connected with the selection process, even as there was not even a murmur regarding their qualifications, experience or suitability for the position.

The worst irony is that Khan then proceeded to unilaterally appoint vice-chancellors to these vacant positions, with his own hand-picked people without even a semblance of a proper selection process. In other words, Khan turned the universities into his own personal fiefdom, appointing people with little or questionable credentials.

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The sorry result is that today most universities in the state find themselves in crisis, with people at the top having little clue about university academics or governance, unable or afraid to take any real initiative. As for most other things that Khan did as governor during his term, this too can be best captured by an old Turkish proverb, “When a clown moves into a palace, he turns the palace into a circus.”

Lokayukta Bill

It is in this context that a wider change was envisaged. The alternative proposed in the University Bills is that the chancellor should be a reputed academic and scholar who knows the workings of a university better than a governor, who cannot be automatically expected to have any knowledge in that area.

Kerala has already taken a step in that direction by appointing Mallika Sarabhai, the renowned danseuse, as the chancellor of the Kerala Kalamandalam University for Arts and Culture, a deemed-to-be-university under government ownership.

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The other major move is in the amended Lokayukta Bill which abolishes the appellate power of the governor. For any Lokayukta judgment passed against the chief minister, appeal would lie with the assembly and not the governor.

For judgments against ministers, the chief minister would be the appellate authority, and for those against MLAs, it would be the assembly speaker. Again, the ostensible principle here too is the primacy of the democratically elected legislative assembly over the unelected governor.

Do we need governors?

Kerala’s writ petition is pending in the Supreme Court and one would think, after the decisions, first on Punjab and now on Tamil Nadu, that there is cause for hope for the state government. As to whether this latest decision is directly applicable to Kerala’s case is for the court to say.

And if at all it is needed, why not turn it into an elected office, in keeping with the rest of the democratic system?

(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not necessarily reflect the views of The Federal.)