The Crisis of Constitutional Discretion - Governor’s Role in India’s Federal Framework

Context:

• The Supreme Court’s judgment on the conduct of Tamil Nadu Governor R.N. Ravi is set to have a far-reaching impact on Centre-State relations, highlighting India's federal ideals during these certainly difficult times.
• The verdict enhances the administrative autonomy of States, and regulates the functioning of constitutional offices, with implications for the entire country.
• In the case which concerns Mr. Ravi’s handling of 10 Bills passed by the State Assembly, the Court has effectively changed how Governors carry out their constitutional responsibilities.

The Ideal vs Reality of the Governor’s Office:

• Cervantes' quote ("The good governors should stay at home and have a broken leg") reflects the original vision: governors as restrained, non-political figures.
• Expected to “consult, warn and encourage,” staying above active politics.
• In India, this constitutional ideal has eroded, with increasing politicisation of the office.

Governor-State Government Conflicts - A Growing Crisis:

• Politicisation and partisanship: Governors have actively disrupted state governance by:
  • Delaying or denying assent to bills.
  • Interfering in appointments (e.g., vice-chancellors, legislative council nominations).
  • Altering addresses and obstructing House sessions.
  • Comparatively more confrontational than during Congress-led eras.
• Strained centre-state relations:
  • Particularly tense between opposition-ruled states and centrally-appointed governors.
  • Reflects erosion of federal spirit enshrined in the Constitution.

Supreme Court's Intervention - A Landmark Judgment:

• Case overview: Tamil Nadu governor withheld 10 bills; Court deemed such delay arbitrary and unconstitutional.
• Key judicial principles established:
  • Elected representatives should indeed have more powers than nominated governors.
  • Article 200: Governor does not enjoy absolute discretion over bills.
  • States should be free to legislate on the 66 subjects that are under their exclusive jurisdiction as per the Seventh Schedule.
  • The Supreme Court, invoking its extraordinary powers under Article 142,
    • Has laid down strict timelines for
      • Assenting to bills.
      • Reconsideration
      • Referral to President.
    • To safeguard federal democracy from the clutches of unelected governors who, under Article 159, are obliged to preserve, protect and defend the Constitution.
  • The Court has deemed all bills from the date submitted to the governor as assented.

Historical Context - Framing the Governor’s Role:

• Constituent assembly debates:
  • B.N. Rau: Proposed elected governor.
  • Sardar Patel: Favoured popular election and impeachability.
  • Jayaprakash Narayan: Recommended selection by Assembly and MPs.
• Final decision by B. R. Ambedkar:
  • Governor to be nominated, not elected, to avoid conflict with the CM. The governor (due to his popular support) may encourage separatist tendencies or may join hands with the CM and defy the Centre’s dictates.
  • Expected to be a neutral figure, not Centre’s agent.
  • Consultation with Chief Ministers was envisaged in appointments.
• T.T. Krishnamachari and Sarkaria Commission (1983):
  • Both recommended veto power to CMs and broader consultation.
  • The Sarkaria Commission also recommended that the Vice-President and Speaker of Lok Sabha should also be consulted.

Constitutional Morality vs Discretionary Powers:

• Defining constitutional discretion:
  • Not personal will, but bound by reason, justice, and law.
  • Edward Coke (former UK Solicitor General): Discretion must distinguish truth from falsity, right from wrong.
  • Justice William Douglas (US): Absolute discretion is destructive to freedom.
• Principles of proper discretionary use:
  • Reasonable and cautious application.
  • Free from central dictation.
  • Based on proper understanding of facts.
  • Without bad faith or irrelevance.
  • Never whimsical or arbitrary.

Structural Reforms - Security of Tenure and Accountability:

• Current structural deficiency:
  • No tenure security for governors; vulnerable to dismissal.
  • Encourages loyalty to Centre, undermines autonomy.
• Proposed reform:
  • Provide tenure protection similar to judges to ensure independence.
  • Reinforce the idea of the governor as a constitutional functionary, not a political agent [SC in Raghukul Tilek (1979)].

Conclusion - A Call for Federal Balance:

• The SC judgment is a timely reminder of the spirit of cooperative federalism.
• The governor’s office must return to its constitutional roots - neutrality, restraint, and non-partisanship.
• Without structural and procedural reforms, the federal fabric of the Constitution remains under threat.

Q1. Discuss the constitutional role envisioned for the office of the Governor in India.

Ans. The Constitution envisions the Governor as a nominal, non-partisan head of the state who acts on the aid and advice of the Council of Ministers and serves as a constitutional link between the Centre and the state.

Q2. How has the Supreme Court's April 2024 judgment impacted the discretionary powers of Governors under Article 200?

Ans. The Supreme Court clarified that Governors do not have absolute discretion under Article 200 and mandated strict timelines for granting assent, thus curbing arbitrary delays in the legislative process.

Q3. What were the recommendations of the Sarkaria Commission regarding the appointment of Governors?

Ans. The Sarkaria Commission recommended consulting the Chief Minister and other dignitaries like the Vice President and Lok Sabha Speaker before appointing a Governor to ensure neutrality.

Q4. Why was the Governor's discretion considered unconstitutional in the Tamil Nadu bills case?

Ans. The Governor’s prolonged inaction and selective referral of bills to the President was deemed arbitrary, mala fide, and violative of constitutional principles by the Supreme Court.

Q5. Why is the security of tenure for Governors suggested as a reform measure?

Ans. Granting security of tenure would reduce political interference and enable Governors to act more independently, safeguarding their role as neutral constitutional authorities.

Source:IE