The Extra-Constitutional Delusions of Raj Bhavan

Why in News?

• The article critically analyses the powers and limitations of Governor in respect of recent actions by Governor’s office that have evoked nationwide attention for all the wrong reasons.

 

Background

• Recent controversy: A tweet put out recently by the office of the Kerala Governor stated that the statements of individual Ministers that lower the dignity of the office of the Governor can invite action including “withdrawal of pleasure”.
• Constitutional backing: Though Raj Bhavan did not explicitly say that such Ministers would be expelled but, going by the text of Article 164(1) of the Constitution, this gave a clear indication of the consequences.
  • As per Article 164(1) the ministers shall hold office during the pleasure of the Governor.
• Demonstration: This was made even more apparent when the Governor sent a letter to the Kerala Chief Minister asking him to act against the State Finance Minister, who, according to the Governor, had “ceased to enjoy” the Governor’s “pleasure”. The Chief Minister however, declined to do so.
• Other actions: The Governor’s other move, for ousting Vice-Chancellors of universities in the State, alleging deficits in their appointment process, is claimed to be in exercise of his statutory power as Chancellor.
  • But he has no such special power and can only act within the bounds of Constitution.

 

Constitutional facets of Governor’s office

• Republican will: The function of the appointed Governor is always subject to the policies of the elected government, and not vice-versa. This is a foundational theory of India’s constitutional democracy.
• Linkage of provisions: The Constitutional provisions cannot be read in isolation.
  • For example, Article 164, which contains the provision regarding appointment of the Chief Minister and administering the oaths of the Ministers is inseparable from Article 163.
  • As per Article 163(1), the Council of Ministers must aid and advise the Governor and Article 163(2) allows Governor to act in his discretion in certain specified matters as permitted by the Constitution.
  • Therefore, it follows that unless the Cabinet or the Chief Minister advises the expulsion of a Minister, the Governor cannot cause the exit of a particular Minister by “withdrawing pleasure”.
• Limited discretion: Also, Article 163(2) allows Governor to act in his discretion in certain specified matters as permitted by the Constitution.
  • This would mean that the Governor is generally bound by the Cabinet decision except when he has a legitimate right to invoke his discretion.
  • This is elucidated in deciding on sanction to prosecute a Cabinet Minister or in Governor’s decisions as Administrator of a Union Territory, as per the orders of the President of India etc.
• Supreme Court viewpoint: In Shamsher Singh vs State of Punjab (1974), the Supreme Court quoted the opinion of the first Attorney General of India, M.C. Setalvad, that the principle that the President (or the Governor) is guided by the aid and advice of the Cabinet covered every function whether it relates to addressing the House or returning a Bill for reconsideration, or assenting or withholding assent.
  • In this case, for the purpose of comparison, the Supreme Court extracted Dr. B.R. Ambedkar’s introductory statement made in the Constituent Assembly, which stated the following:
  • The President of the United States is not bound to accept any advice tendered to him by any of his secretaries and can dismiss any Secretary at any time.
  • The President of the Indian Union, on other hand, will be generally bound by the advice of his Ministers and can do nothing contrary to their advice nor can he do anything without their advice. Also he has no power to dismiss the Ministers, as long as they command a majority in Parliament.
• Parallel comparison: The same principles apply to the Governors as well, since the Union Minister also holds the office “during the pleasure of the President” as in Article 75(2) of the Constitution.
  • Hence, “withdrawal of pleasure”, without advice from the Council of Ministers, as indicated by Kerala Raj Bhavan recently is a misconception.
  • But this romanticism of the Constitution was to be translated to a level of judicial realism and pragmatism, which the Supreme Court did in Shamsher Singh.

 

Evolution of Governor as titular head

• Outlining contrasts: Differentiating the constitutional meaning of Article 164(1), from its literal meaning, requires a historical reading of the provision as explained below:
• Raw framework: The draft Constitution, prepared by the Constitutional Adviser in 1947, contained Article 126, according to which, “Governor’s Ministers shall be chosen and summoned by (the Governor) and shall hold office during his pleasure”.
• Unfolding progression: This Article, which was made part of the draft of the erstwhile Article 144, was discussed at length in the Constituent Assembly.
  • The general discretion with the Governor was taken away, and the Cabinet was given the authority to rule.
  • Amendment to the draft Article 144 moved by B.R. Ambedkar resulted in the present constitutional scheme of Articles 163 and 164.
• Legal references: Referring to Ambedkar’s speech , scholar Subhash C. Kashyap in Constitutional Law of India explained that the words ‘during pleasure’ were, always understood to mean that the ‘pleasure’ should not continue when the Ministry had lost the confidence of the majority.
  • The moment the Ministry lost the confidence of the majority, the Governor would use his ‘pleasure’ in dismissing it.
  • Therefore, the Article implies that the Governor is only a titular head of the State and that if the Cabinet has majority, the Governor cannot act against the Cabinet.

 

Addressing a concern

• Imperialist mindset: The Governor’s office has a colonial origin. The Government of India Act, 1858 situated the post of Governor under the supervision of the Governor General.
  • The subsequently promulgated Government of India Act, 1935 was enforced with effect from April 1, 1937. Even as per this act, Governors were to act based on the advice of the provincial Government.
• Constituent Assembly Debates : The potential danger that could be posed by continuation of this colonial institution was a matter of concern for the Constitution makers.
  • During the deliberations, H.V. Kamath asked if there was any guarantee against abuse of power by the Governor.
  • The immediate reaction by P.S. Deshmukh, another prominent member of the assembly was that the guarantee is the Governor’s wisdom and the wisdom of the authority that will appoint the Governor.

 

Conclusion

• The governors should act in a nonpartisan way while fulfilling their constitutional duties and the parliament should consider the recommendations of various commissions to reform the office of the governor further for a better and healthy democracy.

 

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Source: The Extra-Constitutional Delusions of Raj Bhavan