State govts vs Governors saga takes new twists with SC's intervention

In July 2014, less than two months after the National Democratic Alliance (NDA) government took charge at the Centre, several Governors appointed by the preceding United Progressive Alliance government quit their perches. Some others held on for a few weeks more, but gave in.

One, Gujarat Governor Kamla Beni­wal, was moved to Mizoram. A month later, four months before her tenure was to end, Beniwal was relieved of her posit­ion, ostensibly for misusing the excheq­uer’s money to travel to Jaipur during her Gandhinagar tenure. Although this was in compliance with the Sarkaria Commission’s recommendation and a Supreme Court order of 2010 that Governors should not be sacked before completing their five-year tenure unless there are “rare and compelling” reasons, there was a subtext to the episode.

As the Gujarat Governor, Beniwal had several run-ins with the Bharatiya Janata Party (BJP) government in the state. She delayed her assent to Bills that the state Assembly had passed, including one that provided for 50 per cent reservation for women in local bodies. She also had disagreements over appointments of university vice-chancellors and the Lokayukta.

Gujarat’s chief minister at that time, Narendra Modi, addressing a public meeting in Porbandar on the Mahatma’s birth anniversary in 2011, demanded that the Centre “recall” Beniwal. “The present Governor is a woman, and yet she is opposed to women getting the benefit of reservation of seats,” he said.

Cut to July 2023 and go south-east from Gujarat to Tamil Nadu. In a 15-page letter to President Droupadi Murmu, TN Chief Minister M K Stalin said Governor R N Ravi was unfit to occupy the post as he “unnecessarily delays” approving Bills passed in the Assembly and “acts like an enemy to the people-elected state government's policies and ideology”.

Stalin in 2023 is not an isolated inst­an­ce and nor was Modi in 2011. In recent years, Punjab, West Bengal, Telangana, Jharkhand and Kerala have complained about the actions of their Governors. Some state governments moved the Supreme Court against Governors not honouring the Council of Ministers’ recommendation to convene Assembly sessions or withholding assent to Bills.

Article 200 of the Constitution asks Governors to sign Bills passed by legislatures “as soon as possible”, and state governments requested the apex court to prescribe a time limit for it.

The Supreme Court, in its judgment of November 10, posted on its website on November23, said the real power in a Parliamentary democracy rested with the elected representatives of the people, and the Governor, as an appointee of the President, was a titular head acting on the “aid and advice” of the Council of Ministers, except in areas where the Constitution entrusted the exercise of discretionary power to the Governor.

In the case of Tamil Nadu, where Governor Ravi withheld his assent without giving reasons to Bills passed by the Assembly, which later readopted those Bills and presented to him for assent, the SC said the Constitution did not give the Governor the discretion to withhold assent to Bills when the state Assembly re-passed these. It also ruled in the Punjab government’s favour against Governor Banwari Lal Purohit in conven­ing sessions and giving assent to Bills.

The SC asked Kerala Governor Arif Mo­­hammed Khan to refer to its judg­m­ent in the Punjab Governor case, where the top court said a Governor could not pr­e­vent state legislatures from making a law.
 

This week, on Tuesday, after nearly two years of wrangling with the state government, Khan signed one Bill, the Kerala Public Health Bill, 2022, while exercising his power under Article 200 by reserving seven Bills for the President’s consideration. The Kerala government has again requested the SC to adjudicate on the issue. Earlier this year, Telangana Governor Tamilisai Soundararajan cleared Bills after the SC intervened.

 

Deeper underpinnings

According to former Lok Sabha Secretary General PDT Achary, Article 200 of the Constitution gives three options to the Governor when a Bill is presented to her after a state legislative Assembly (and the legislative council, where it exists) passes it. The Governor can assent to the Bill, withhold assent and send it back to the Assembly for reconsideration, or send it to the President for consideration. The Governor has to assent to the Bill even if the Assembly passes the Bill again without accepting any of the Governor’s suggestions. The Governor can refer a Bill to the President if it encroaches upon the rights of the High Court or, in the Governor’s discretion, a subject in the concurrent list. “But sitting on a Bill passed by the Assembly is not an option given by the Constitution,” Achary told Business Standard.

Maalan V Narayanan, a Chennai-based author and political analyst, says the confrontation has deeper underpin­nings than Governors exercising discretion. “If you look at these states, you would understand that this is an ideological conflict,” Narayanan said, citing how the delay in Governors’ assent to Bills is related primarily to matters of appointment of vice-chancellors rather than social welfare policies.

It is a different scenario in states ruled by the same party that leads the Union government or by a party allied to the government at the Centre. Earlier this month, Raghubar Das, the newly appointed Odi­sha Governor, called on Chief Minis­ter Naveen Patnaik at the latter’s residence. The Opposition Congress in the state slammed the “courtesy visit” as a breach of protocol. Patnaik’s party is not a part of the NDA but the two are known to take common positions in certain instances.

 

Long history of discretion

Although the Constituent Assembly discussed the Governor’s role in detail, amending the Government of India Act, 1935, for the needs of a newly indepen­dent democratic country, Opposition parties have questioned the Governor’s role from as early as 1959, when the EMS Namboodiripad government in Kerala was dismissed in 1959 on the recomm­endation of Governor B R Rao in the wake of protests against a Bill to cap land-

own­ership and another on education.

Several other dismissals by Gover­nors followed, such as of the United Front government in West Bengal in 1967, Kalyan Singh’s government in Uttar Pradesh in 1998, and dissolution of the Bihar Assembly in 2005 by Governor Buta Singh, who quit after the SC questioned his decision.
 

J Prabhash, a former Kerala Univer­sity provice-chancellor, told Business Standard the Congress government at the Centre stalled the Kerala Education Bill of the Left Front government in 1957. “Even if it is regarding the appointments in universities, it is the right of the Asse­m­bly and not of the Governor,” he said.

The Sarkaria Commission (1987) on Centre-state relations, the National Com­mission to review the working of the Constitution (the Venkatchaliah Comm­ission), and the Punchhi Commission studied the role of Governors, recommending a time limit under Article 200 for assent to Bills. But it is for Parliament to step in to amend the Constitution. Article 163(2) states that the validity of a Governor’s decision, taken in her discretion, shall not be questioned.

Over the years, the Left parties and some regional ones, such as TN’s Dravida Munnetra Kazhagam government, demanded the abolition of the Governor’s office. In certain cases, the discourse took an unexpected turn, such as in 1981, when CPI (M) leader Pramode Dasgupta, after the ruling Left Front government’s run-ins with Raj Bhavan, described West Bengal Governor B D Pandey as “Bangla Daman Pandey”.

In Andhra Pradesh in 1984, Governor Ram Lal appointed N Bhaskar Rao to replace Chief Minister N T Rama Rao, while the latter was in the United States for heart surgery. In 2019, the late-night swearing-in of Devendra Fadnavis as the Maharashtra Chief Minister by Governor Bhagat Singh Koshyari (Fadnavis had to quit three days later), or the SC’s observa­tions on the circumstances leading to the collapse of the Uddhav Thackeray-led Maha Vikas Aghadi government are merely the latest episodes. 

Given this backdrop, one Governor can be said to have gone against the current. Tamil Nadu Governor Surjit Singh Barnala in 1991 refused to heed the Chandra Shekhar government to recommend the dismissal of the M Karunanidhi government. He was transferred to Bihar, but chose to quit.
 

Interestingly, when gubernatorial officers were considered sinecures for nearly retired politicians, Barnala returned to active politics, becoming a Union minister in the Atal Bihari Vajpayee government in 1998, and later served as the Tamil Nadu Governor during the Manmohan Singh government from November 2004 to August 2011.