By Dr Swati Jindal Garg
The increasing strain between Opposition-ruled states and their governors came to a head recently in the Supreme Court where it said that “governors must act” before the issue reaches courts. A three-judge bench headed by Chief Justice DY Chandrachud was hearing a plea by the Punjab government which said that the governor, Banwarilal Purohit, had kept as many as seven Bills pending.
The chief justice chided: “This happened in the case of Telangana also. Why do parties have to come to the SC? The Governors must act before it comes to the SC… Only after they come to the SC, that the Governors start acting. This has to stop.”
He added: “There is a little bit of soul searching required by the Chief Ministers, there is a little bit of soul searching required by the Governors. Because Governors also cannot be oblivious to the fact that they are not elected representatives of the people. The Governor can either withhold his assent, refer it to the President, or they are duty bound they can return it once. And particularly on money bills.”
The Bills that are pending assent include the Punjab Police (Amendment) Bill, 2023, that talks about an independent mechanism for selection of the DGP; the Sikh Gurdwaras (Amendment) Bill, 2023, that is about ending “undue” control of a particular family (Badals) over the rights to telecast Gurbani from the Golden Temple; the Punjab University Laws (Amendment) Bill to vest the powers of chancellors in state universities with the CM as well as the Punjab Affiliated Colleges (Security of Service) Amendment Bill, 2023 that demands streamlining of the working of the Educational Tribunal.
Even Kerala had gone to the apex court with a grievance against governor Arif Mohammed Khan. It stated that he was not giving the go-ahead to as many as eight bills that “involve immense public interest” as they provide “welfare measures which would stand deprived and denied to the people of the State to the extent of the delay”.
The state also alleged that the conduct of the governor “threatens to defeat and subvert the very fundamentals and basic foundations of our Constitution, including the rule of law and democratic good governance, apart from defeating the rights of the people of the State to the welfare measures sought to be implemented through the Bills”. It said that keeping these bills pending was a direct violation of the right to equality and the right to life as promised under the Constitution through Articles 14 and 21 respectively as it denies them the benefits of welfare legislation enacted by the state assembly.
Article 200 of the Constitution states that it is the solemn duty of the governor to “declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President”.
“The Governor appears to be of the view that granting assent or otherwise dealing with Bills is a matter entrusted to him in his absolute discretion…. This is a complete subversion of the Constitution,” the Kerala government said. Considering that the Supreme Court has in various judgments held that bills passed by state assemblies should not be withheld indefinitely, the governor was “not discharging his constitutional duties”, the state government said. The governor, on the other hand, has had a persistent tussle with the LDF government and clarified that he withheld assent to only some bills where his queries were not addressed.
Other states have also approached the Supreme Court with their woes against the governor. Earlier, the Tamil Nadu DMK government too had moved the Court raising similar complaints against its governor—RN Ravi. It has contended that the governor’s actions had led to a “constitutional deadlock between the Constitutional Head of the State and the Elected Government of the State” and urged the Court to fix a timeline within which he should give assent to Bills cleared by the state legislature.
Tamil Nadu has alleged that the governor was “positioning himself as a political rival to the elected govt” in the state, whereas his actions should ideally reflect “the satisfaction of the Council of Ministers”. The DMK government has also raised other concerns in its pleas stating that the constitutional authority of the state, ie, the governor, was “consistently acting in an unconstitutional manner, impeding and obstructing” the functioning of the state government “for extraneous reasons”. It alleged that the delays caused due to sitting on these bills resulted in further delays in legislation and crucial appointments which cause “a constitutional deadlock”.
It said around 12 bills were pending with the governor, out of which the oldest legislation dated back to 2020 which was a bill to confer the government with the power of inspection and inquiry instead of the power lying with the chancellor (governor). Another bill that has been stuck for a long time pertained to the demand for a government nominee in the panel for selection of the vice-chancellor. There are other pending bills that involve a shift in the administrative powers and authority from the governor to the state government.
West Bengal too has been at loggerheads with the centre over the deployment of central forces for the panchayat elections. The Supreme Court dismissed its pleas challenging a Calcutta High Court order that directed the State Election Commission to requisition and deploy central forces across West Bengal for the panchayat elections. This decision by the apex court can also be taken as an “advice to the state election commission” that it should ensure free and fair panchayat polls in the state instead of “acting as a tool of the state government”.
The contention of all these states is that a governor who acts in gross disregard and violation of the provisions of the Constitution cannot be said to be functioning in the discharge of his duties as a governor; no governor is empowered to violate the provisions of the Constitution, either through his action or in these cases, inaction.
The states also claim that the conduct of the governor not only threatens to defeat the rule of law, but subverts the very fundamentals and foundations of the Constitution, including democratic good governance. It also defeats the rights of the people of the state to welfare measures sought to be implemented through the bills.
The framers of the Constitution were widely in favour of social equality and political justice. They were inspired by the concept of democracy. The democratic political system allows people to have the right to participate in the decisions, and promises that they will be listened to.
Although the president holds the highest position of formal executive authority and serves as the head of state, the prime minister is in charge of the government. The state executive is covered under Article 153-167 in Part 6 of the Constitution. Hence, the Constitution calls for a separate federal government with a different organisational structure.
In order to avoid clashes between different levels of government, the Constitution has provided adequate division of roles through the three lists—Central, State and Concurrent. But when the party at the centre differs from that in the state, problems can arise. Clashes are more marked then.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi