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Breaching the Lakshman Rekha

By Varun Hari Prasad
Over the past few weeks, the conduct of Governors, especially in the states ruled by Opposition parties, have been a subject of intense public debate. From the Governor of Kerala 'withdrawing his pleasure' from the Finance Minister of Kerala to the Governor of Tamil Nadu abruptly walking out of the Assembly, the past few weeks have seen increasing confrontation between the Governors and Chief Ministers of opposition ruled States.

Article 163 of the Constitution of India prescribes and limits the powers of the Governor in the following manner:

"There shall be a Council of Ministers with the Chief Minister as the head to aid and advice the Governor in the exercise of his functions except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion."

The language in this article is simple. The Governor is bound to discharge his functions on the advice of the Council of Ministers, headed by the Chief Minister. The Governor can act in his discretion only in matters where the Constitution requires him to do so. This has been further endorsed by the Supreme Court in Samsher Singh vs State of Punjab (Justice Krishna Iyer's judgement):

"We declare the law of this branch of our Constitution to be that the President and Governor...shall... exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations."

The Westminster Model

Our Constitution has adopted the 'Westminster Model', which in other words can be described as Constitutional Monarchy. The President of India is the Head of State and the Union Government is run in the name of the President of India. The same thing is applicable to the Governor at State level.

A plane reading of the Constitution shows that the President & the Governor (as the case may be) is vested with a large repository of powers. However, the truth, as interpreted by the Courts in various cases clearly establish that the President or Governor is a nothing but metaphor for the Council of Ministers on whose advice alone they can discharge their functions except in very limited areas that are clearly defined in Article 74 and Article 163 of the Constitution. This has been re-affirmed in several cases by the Supreme Court.

The only function where the Governor can exercise discretion is: i) Appointment of Chief Minister ii) Dismissal of Government when it has lost majority in Assembly and iii) Preparing reports under Article 356 of the Constitution. Even in these functions, various Supreme Court judgements from SR Bommai case to Nabam Rebia case have clearly defined the scope of discretion.

Breaching the Lakshman Rekha

As mentioned in initial portions of this essay, we have recently heard of an instance where the Governor of Kerala 'withdrew his pleasure' from the Finance Minister of the State. Ministers holding office during the pleasure of Governor is the essence of Cabinet System of Government. Being a seasoned politician himself, the Governor of Kerala should have understood that the 'pleasure of Governor' essentially means 'pleasure of the Council Ministers' which is headed by the Chief Minister. He shouldn't have forgotten that the Cabinet assumes and demits office along with the Chief Minister. Who must be sworn-in as Minister and holds office for how long depends on the Chief Minister.

Another duel out in public domain is between the Governor and Chief Minister of Tamil Nadu. The Chief Minister contends that the Governor is delaying enactment of various legislation passed by the Assembly without granting approval. The Governor of Tamil Nadu was also in the news recently for abruptly walking out of the Assembly. Can Governors delay enacted of legislation inordinately?

What is true about the 'pleasure' of Governor is also true for assenting to Bills passed by the Assembly. While it is true that the Governor does have the power to return a duly passed legislation, he is bound to provide assent to it if the same is reiterated. The satisfaction required by the Constitution is not the personal satisfaction of the Governor but the satisfaction of the Governor in the Constitutional sense, that is, the Council of Ministers. Though the Constitution does not stipulate any time-frame for the Governor to clear Bills and other recommendations by the Cabinet, propriety demands that he decides within a reasonable time-frame.

Conclusion

To sign off, I will leave you with a quote from Dr B.R Ambedkar's speech in the Constituent Assembly on 25 November 1949:

"…however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot.

…The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depends are the people and the political parties they will set up as their instruments to carry out their wishes and their politics."






 








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