Guest Post: Withholding Assent – Where’s the Delay?

[This is a guest post by Yogesh Byadwal.]

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In State of Punjab v. Principal Sec., the SC made important observations regarding the role of the Governor and Article 200 (withholding of assent), which holds deep importance for Constitutional federalism. In the past, state govts of T.N., Kerala, Punjab, Telangana and West Bengal have approached the apex court on various occasions alleging that the Governors in their respective states were creating ‘constitutional deadlock’ with ‘prolonged delay’ in assenting to crucial bills. In fact, the T.N. Govt. has submitted that their governor is positioning himself as a ‘political rival’, whose inaction has brought the day-to-day administration of the state to a ‘grinding halt’.

In this post, I will discuss the observations made by the court regarding the role of the Governor and its interpretation of Article 200.  I will further discuss the implications of the holding of the court in this case on other similar matters pending before the court. I argue that the case brings much-needed clarity as regards the process of “withholding of assent” by interpreting it in light of the true constitutional structure of power.

ARTICLE 200, FIRST PROVISO AND WITHHOLDING

On 20^th Nov., while hearing a batch of writ petitions filed by the Govt. of TN and Kerala against Governor inaction, the court had orally observed: “When he (Governor) withholds assent, does he have to necessarily resend it to the legislature?…. The proviso says the Governor may resend to the legislature with a message. Our question is whether the Governor can simplicitor say that he is withholding assent?” (here).

In this judgement, the above questions have been coherently answered. It has implications for other similar matters pending before the apex court which I discuss in the next section. On the question of whether the Governor can withhold action on bills which have been passed by the State legislature, the court notes:

“…if the Governor decides to withhold assent under the substantive part of Article 200, the logical course of action is to pursue the course indicated in the first proviso of remitting the Bill to the state legislature for reconsideration. In other words, the power to withhold assent under the substantive part of Article 200 must be read together with the consequential course of action to be adopted by the Governor under the first proviso.” (Para 25)

Accordingly, the court held, that the course of action which the Governor is supposed to follow under the first proviso of Art. 200 is:

Governor must mandatorily follow the course of action which is indicated in the first proviso of communicating to the State Legislature “as soon as possible” a message warranting the reconsideration of the Bill. The expression “as soon as possible” is significant. It conveys a constitutional imperative of expedition. Failure to take a call and keeping a Bill duly passed for indeterminate periods is a course of action inconsistent with that expression….The Governor cannot be at liberty to keep the Bill pending indefinitely without any action whatsoever. (Para 24)

In other words, the Governor does not have a ‘pocket veto’ to ‘withhold’ assent to a bill indefinitely. The ‘may’ in the first proviso does not provide the Governor with the discretion to decide whether or not to provide assent to a bill. Rather, read with the substantive provision of Art. 200, it only provides that the Governor must expeditiously ‘return’ the bill to the state legislature with a message for reconsideration of the entire bill or specific provisions thereof and introduce any amendments he may deem fit for consideration of the assembly. If such a bill is passed again, with or without amendments, the second part of the proviso provides that the Governor has no option but to assent to the bill. Therefore, the role of the Governor is merely ‘recommendatory in nature’.

However, it must be brought to notice that the above finding is not novel or ground-breaking. In fact, in Nabam Rebia v. Deputy Speaker, the court had noted:

Governor cannot withhold assent to a Bill indefinitely but must return it to the Assembly with a message and this could include his recommendation for amendments to the Bill.

Moreover, it had laid down that gubernatorial discretionary powers were amenable to judicial review. It had held:

… area for the exercise of his(Governor) discretion is limited. Even this limited area, his choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution.

Paras in his post, using the above observations, proposes the ‘arbitrary and mala-fide’ test as the standard to be used while exercising judicial review over the governor’s discretionary power(including the power to withhold assent). In my opinion, this test provides a sound standard of review. Nevertheless, the judgement must be credited for removing ambiguities and gaps in the text of Art. 200. Moreover, it provides the correct understanding of the role of a Governor in the Indian polity and Constitutional Federalism.

IMPLICATIONS

In the T.N. episode, the question raised is whether the governor can ‘withhold’ a bill without reason. The answer to this question, in turn, depends on the interpretation of the term ‘withhold’.

There, the Governor, after being issued court notice, simply issued a one-line communication- “I withhold assent” with regard to ten pending bills (here) He provided no reasons for withholding assent neither did he provide a note for reconsideration of any part of the bill. In this circumstance, the Governor has ‘withheld’ assent without returning the bill for reconsideration. Why?

R.N. Ravi, Governor of T.N., has previously remarked- “Withholding does not mean that I am holding it. It has been defined by SC as the bill falls through, the bill is dead.” (here) Mr. Ravi has also observed that the ‘Governor is part of the legislature who must determine whether the bill is exceeding constitutional limits or exceeding competence before giving assent thereto.’ (here) In other words, according to him, the Governor has the discretion to ‘reject’ a bill without ‘returning’ it to the assembly, thereby nullifying the effect of the second part of the first proviso to Art. 200.

The present judgement clarifies that such an interpretation has no constitutional basis. Rather, ‘withhold’, read with the first proviso, means that the ‘pending’ bill must be ‘mandatorily’ returned ‘as soon as possible’, expeditiously without unavoidable delay, to the legislative assembly with an accompanying message providing reasons for withholding assent. An ‘inaction’ on the part of the Governor in disposing of the pending bill will be inconsistent with the words ‘as soon as possible’ under Art. 200. Further, the court notes, that if such a view is not taken, ‘the Governor would be in a position to virtually veto the functioning of the legislative domain by a duly elected legislature by simply declaring that assent is withheld without any further recourse.’

Therefore, in the case of T.N., the inaction on the part of the Governor by withholding pending bills without returning the same to the assembly and providing reasons for withholding assent for three years is a breach of the constitutional obligation under Art. 200.

As regards Telangana, Governor T. Soundararajan has remarked- “A bill withheld isn’t dead; it’s under assessment.” (here) According to this view, since Art. 200 does not prescribe an outer limit within which the Governor must assent(undefined discretionary power r/w Art. 163), the Governor can keep the bill ‘pending’ indefinitely. Any interpretation of ‘withhold’ which defeats the said discretionary power will be unsustainable and unconstitutional.

However, as pointed out, the Governor does not have the discretion to withhold his assent on bills sent to him by a democratically elected state legislature. Rather, he must take the course of action pointed out above or else it would violate the ‘fundamental principles of constitutional democracy’. Therefore, the actions(or inaction) on the part of the Telangana Governor are unconstitutional. Similarly, the inaction of Kerala Governor for three years also will fall foul of constitutionality.

CONCLUSION

SC has noted that ‘the Governor is under Article 168 a part of the legislature and is bound by the constitutional regime.’ However, it does not mean that the Governor is a ‘super-legislature’ whose power can be used ‘to thwart the normal course of law-making by the State Legislatures’. Rather, as Dheeraj points out, the role of the Governor is executive and cannot substitute for ‘clear obligations defined in the constitution’. Therefore, the power of the Governor is devoid of any law-making power. The present judgement provides clarity on the role of the Governor and fills the gaps in Art. 200. The outcome, for now, will hopefully break the constitutional deadlock between the Governor and State legislature.  

Guest Post: Authorisation versus Appointment – A Constitutional Tussle

[This is a guest post by Anshul Dalmia.]

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On 28 June 2023, a Division Bench of the Calcutta High Court (“High Court “) in the case of Dr. Sanat Kumar Ghosh v. Chancellor, Kalyani University (‘Sanat Kumar’), dismissed the requirement of consulting the Minister i.e., the state government while ‘authorizing’ professors to be interim Vice-Chancellors of state-run universities. This judgment is amongst the many decisions emanating from both the High Court and the Supreme Court reflecting a constant tussle going on between the West Bengal State Government and the governor, backed by the Central Government, to usurp the power to appoint the vice chancellors of these governmental institutes.

In October 2022, the Supreme Court in the case of State of West Bengal v. Anindya Sundar Das (‘Anindya Das’) quashed the re-appointment of the Vice-Chancellor of the prestigious Calcutta University on the grounds that the prior approval of the Chancellor i.e., the Governor had not been taken. Further, on 14 March 2023, the High Court, in Anupam Bera v. State of West Bengal (‘Anupam Bera’), rejected the appointment of 24 Vice-Chancellors of state-aided institutions terming them to be unsustainable and without the authority of the law.

Through this post, I seek to examine the judgment of the High Court in Sanat Kumar, in the backdrop of Anupam Bera and Anindiya Das, in an attempt to highlight the judicial transgression undertaken by the Court while dealing with the specific requirement of consultation of the state government while appointing Vice-Chancellors in state-run universities.

Sneak Peak in the Battlefield of Education

Professor Dr Sonali Chakravarti Banerjee was re-appointed as the Vice-Chancellor of the Calcutta University after her term had originally ended. The State Government had first approached the Governor to re-appoint Dr Banerjee. However, the Governor sought further clarifications and did not outrightly accede to the State’s request. This led the Special Secretary to the Government of West Bengal to issue an order re-appointing Dr Banerjee for a further term of four years. The High Court quashed the order of re-appointment and upheld the Chancellor to be the appointing authority under the Calcutta University Act 1979. This was further challenged in the Supreme Court. A two-judge bench headed by Justice Chandrachud (as he then was) examined the scheme of re-appointment enshrined in Section 8(2)(a) of the Act. The Court held that –

The expression “subject to the satisfaction of the State government” cannot by a process of inferential reasoning be construed to vest the power of reappointment in the State government. [..] While the eligibility for appointment is indeed determined by the State government’s satisfaction, the power of making the appointment continues to vest in the Chancellor in terms of the provisions detailed below.

More importantly, the Court observed that while the Chancellor had the power of re-appointment, the following conditions were imperative:

Significantly, Section 8(2)(a) speaks of the satisfaction of the State government and past academic excellence and administrative success during the term of office. Fulfilment of those conditions makes a person eligible for being reappointed as a VC.

In Anupam Bera, the High Court was concerned with the appointment of 24 Vice-Chancellors across several universities in the State of West Bengal. These institutions were governed by state acts and their corresponding regulations. It was argued that the selection of the Respondent Vice-Chancellors was in violation of the UGC Regulations 2018 which mandated a compulsory nominee of the UGC to be present in the Search Committee. The High Court following the decisions of the Apex Court in Gambhirdan K Gadhvi v. State of Gujarat and Professor (Dr.) Sreejith P.S. vs. Dr. Rajasree M.S, held that the UGC Regulations 2018 were an intrinsic part of the parent statute, which was the UGC Act 1956. Following the principle of repugnancy, enshrined in Article 254 of the Constitution, the Court held that delegated legislation under a central act would override and supersede a state act. (More about this can be read here) Hence, the Court struck down provisions of the West Bengal University Laws (Amendment) Act 2012 and West Bengal Laws (Amendment) Act 2014 to the extent they were in violation of the UGC Regulations 2018.

Thus, a Vice-Chancellor in a state-run university in West Bengal, could be appointed or re-appointed solely by the Governor, however in consultation and subject to the satisfaction of the Minister(s) of the state government. Further, the UGC Regulations 2018 regarding selection, appointment and eligibility criteria had to be strictly followed.

Reading Between the Lines

After the decision of the High Court in Anupam Bera, the Government of West Bengal made several amendments bringing the State Universities Act in tune with the UGC Regulations, 2018, by passing the West Bengal Universities Laws (Amendment Ordinance), 2013. Since the appointments of several Vice-Chancellors were quashed, an order was passed appointing certain professors as interim Vice Chancellors for a period of three months to exercise the powers and perform the duties of the Vice Chancellor as a stopgap measure. However, it was discovered that while the Minister-in-charge of the Department of the Higher Education, had proposed the names of professors for being appointed as Vice Chancellors for a tenure of six months, the Chancellor of the respondent Universities, without consultation with the Minister-in-charge had made series of appointments of Vice Chancellors. Thus, the orders of appointing professors as interim Vice-Chancellors were challenged before the High Court.

Since the statutes were identical, the Court referred to Section 9(5)(b) of the Kalyani University Act 1981 which provided the arrangement for appointing an interim Vice-Chancellor as follows:

When a vacancy occurs in the office of the Vice-Chancellor by reason of death, resignation or expiry of the term of his office or otherwise, then, pending the appointment of a Vice-Chancellor, the Chancellor in consultation with the Minister may appoint any person to exercise the powers and perform the duties or the Vice- Chancellor for any period not exceeding six months.

Literally interpreting the above provision, it is clear that the Minister i.e., a representative of the State Government has to be mandatorily consulted before appointing an interim head of an institution. However, the Court moved beyond the literal rule of interpretation and provided its imprimatur on the appointments undertaken by the Chancellor. The High Court observed that the order used the term ‘authorise’ and not ‘appoint’ and hence, the professors were not appointed as ‘interim Vice-Chancellors’. Accordingly, this scheme of authorization did not attract the requirement of consultation under Section 9(5)(b). Further, the professors were merely authorized to act on behalf of the Vice-Chancellors due to immediate necessity since the posts of the head of the institutions could not be left vacant.

While this observation seems logical at the outset, there are several ensuing issues. Firstly, it is imperative to go beyond the mere phraseology of the instrument of appointment/authorization and look at the true nature of the functions undertaken by the authorized individual. Any individual who is authorized to take up certain responsibilities, while not being appointed to that post, is undertaking all the functions and exercising all the powers associated with the post. Unfortunately, while the Court too exactly observed that the individuals would essentially be acting as ‘interim Vice-Chancellors’, it put a lot more emphasis on the words and terms used in the orders of appointment.

Secondly, it is contended that usage of the term ‘authorization’ is a mere smokescreen to circumvent the statutory conditions required for an interim appointment. Section 9 of the Act provides solely for the scheme of selection, appointment, and re-appointment. The absence of any procedure to ‘authorize’ individuals makes it obvious that the legislature did not intend to have any other alternative scheme of appointment. Thus, it is argued that the judicial approval of the Chancellor’s unilateral order of authorization is flawed since it permits the Governor to adopt an absolutely different method of ‘authorization’ which has not been statutorily provided for and allows the Governor to dispense away with the consultation of the state government, making the process of appointment of an interim Vice-Chancellor redundant. Thirdly, it is contended that necessity should not be a reason enough to authorize professors rather than to follow the procedure and appoint interim Vice-Chancellors as foreseen under the statutes. Rather than finding ways to navigate around the statutory provisions, the State Government and the Governor ought to come together in order to ensure that the integrity of education in the State is maintained.

The UGC Regulations 2018 highlight that a person who has the highest levels of competence, integrity, morals, institutional commitment and demonstrated academic leadership must be selected to be a Vice-Chancellor. Hence, it is imperative that in order to govern universities effectively, appointments are made following the correct procedure, at the earliest. However, if due to exigencies, appointments are not made as per timelines, re-appointment or appointment of interim Vice-Chancellors should be made solely as per the scheme provided. It is imperative that the Courts actively prevent the ‘unilateral authorization’ of professors to these essential posts and rather foster a collective semblance of appointment.

Guest Post: Judicial Review of Governors’ Delay in Assenting to Bills – a Response

[This is a guest post by Paras Khetan.]

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One of the most crucial functions of the Governor is to give his assent to state Bills. This power is derivable from Article 200 of the Constitution. Recently, the governors of different states such as Kerala, Tamil Nadu, and Chhattisgarh have withheld their assent to their state’s bills. This was also followed by the Chhattisgarh HC seeking the Governor’s reply over the delay in passing a Bill. This was later stayed by the Court itself. The Telangana government has also moved the Supreme Court over the delay in the governor’s assent to Bills. These recent events indicate the high stakes involved in the Governor’s withholding of assent.

Various Commissions like the National Commission to Review the Working of the Constitution and the Puncchi Commission have called for constitutional amendments to prescribe a time limit by which the Governor has to give his assent. However, no action has been taken in furtherance of these recommendations. The failure of legislative intervention necessitates judicial intervention by laying down standards to ensure that the Governor assents to the Bill.

This essay argues for the need to lay down judicially manageable standards of review for the Governor’s power to withhold assent. It suggests the possible standard for review that can be used by the judiciary. It also tackles the presence of Article 361 (personal immunity of the Governor) as a barrier to judicial review.

Article 200: Power to Withhold Assent and the Need for Judicial Review

Article 200 of the Constitution envisages four different options available to the Governor when presented with a Bill for his assent. The governor could assent to the Bill, withhold assent to the Bill, reserve the Bill for the consideration of the President, or return the Bill to the State Legislature for reconsideration. The provision does not indicate any time restraint within which the governor should choose either one of the options. The only guidance provided to the governor is to return the Bill to the State Legislature for reconsideration “as soon as possible”. The Court in Purshothaman v State of Kerala expressed the view that the phrase “as soon as possible” is limited to returning the Bill and cannot be interpreted as applying to the other three options (including withholding assent). Therefore, there is absolutely no limitation to the power of the Governor to withhold assent.

Additionally, the power to withhold assent has been classified as the governor’s discretionary power in Nabam Rebia v Deputy Speaker. This implies that the governor is not bound by the aid and advice of the council of ministers under Article 163 of the Constitution. In a previous blog post, the ambiguity in this proposition is brought to light where various high court decisions have conflated the powers of the president and the governor to hold that governor’s discretionary powers are limited in the same manner as the President’s. However, it is respectfully argued here that there remains no ambiguity with respect to the power to withhold assent due to the decision of the Supreme Court in Nabam Rebia. The Court, here, relied on the Puncchi Commission Report and held that:

….The Governor’s discretionary powers are the following: to give assent or withhold or refer a Bill for Presidential assent under Article 200;…… We are of the considered view, that the inferences drawn in the Justice M.M. Punchhi Commission report extracted hereinabove, are in consonance with the scheme of the functions and powers assigned to the Governor, with reference to the executive and legislative functioning of the State, and more particularly with reference to the interpretation of Article 163. We endorse and adopt the same, as a correct expression of the constitutional interpretation, with reference to the issue under consideration. (Emphasis mine)

Thus, the power to withhold assent falls under the discretionary powers of the governor.

Therefore, the above indicates that the governor (a non-democratic authority) has unbridled power to withhold assent and can stifle crucial state legislations. This offends the principles of parliamentary democracy and responsible government which have been held as the guiding lodestars while interpreting the provisions of the Constitution by various judicial pronouncements such as Samsher Singh v State of Punjab and UNR Rao v Indira Gandhi respectively. This is also a part of the larger paradigm of legislative-executive tussle (state legislature vs governor) and executive aggrandizement (increasing power with the executive branch of the government).

Accordingly, there is a pressing need for judicial review of the governor’s power of withholding assent. Judicial review would help in alleviating the problems identified above by restricting the unbridled powers of the governor.

Possible Barriers to Judicial Review

There are two possible barriers to the possibility of judicial review of the governor’s power to withhold assent. One is the personal immunity of the governor under Article 361 and the second is the absence of any “judicially discoverable and manageable standards”.

Article 361: Personal Immunity of the Governor

Article 361 of the Constitution provides personal immunity to the governor from being answerable to any court for the exercise of his powers and duties. The Court in Rameshwar Prasad v Union of India has unequivocally held that A.361 provides absolute personal immunity to the governor. The Court emphasised that even a notice cannot be issued to the governor to act in a particular way. In fact, the Chhattisgarh HC recently stayed its order seeking a reply from the governor over the delay in assent due to the presence of Article 361.

However, this immunity to the governor should not act as a bar to judicial review of the governor’s power to withhold assent. The Court in Rameshwar Prasad brought in an important distinction between judicial review of the “actions” of the governor as opposed to holding the governor himself liable. The Court held that:

The personal immunity from answerability provided in Article 361 does not bar the challenge that may be made to their actions. Under law, such actions including those actions where the challenge may be based on the allegations of malafides are required to be defended by Union of India or the State, as the case may be. (Emphasis mine)

The withholding of assent can be construed as an “action” by the governor or “actions” can be extended to include “inaction” of the governor. Either way will allow the court to judicially review the power to withhold assent. This may materialize in the form of a deemed assent since the court cannot direct the governor to act in a particular manner.

Absence of Judicially Manageable Standards

There has been little attempt to define the term “judicially manageable standards”. However, essentially, they are understood as those standards that the courts can legitimately employ to achieve a particular legal outcome that is closely related to the constitutional norm itself. The absence of judicially manageable standards is used to term the issue as a “political question” and hence outside the scope of judicial review. RH Fallon observes that judicial manageability is largely dependent on whether the future courts can consistently and predictably apply the particular standard. As will be seen later in the piece, the standard proposed for judicial review would fulfil this requirement for being termed as a “judicially manageable standard”.

Additionally, the Court in RC Poudyal v Union of India held that the mere fact that a particular provision of the Constitution may not allow for judicially manageable standards is not sufficient to bar judicial review. Recently, in Shivraj Singh Chouhan v. M.P. Legislative Assembly, the Court rejected the argument that the Court “should be wary of entering the ‘realm of politics’ where no ‘judicially manageable standards’ can be maintained”. Therefore, even if the proposed standard for judicial review is not judicially manageable, it would not act as a bar to judicial review.

The conclusion that there is no bar to judicial review of the governor’s power to withhold assent also flows directly from other judicial pronouncements as well. The Court in Samsher Singh v State of Punjab held that the refusal of assent by the President and the Governor would be unconstitutional. It observed:

We have no doubt that de Smith’s statement (1) regarding royal assent holds good for the President and Governor in India: “Refusal of the royal assent on the ground that the monarch strongly disapproved of a bill or that it was intensely controversial would nevertheless be unconstitutional… “. (Emphasis mine)

In Nabam Rebia, the Court held that the discretionary powers of the governor are amenable to judicial review. It also observed that the power to withhold assent is a discretionary power of the governor. This implies that the power to withhold assent is subject to judicial review. Therefore, by necessary implication, this implies that it is possible to lay down a judicially manageable standard for judicial review regarding the same.

Standard of Judicial Review

After having established that it is possible to lay down a standard for judicial review, this section would lay down the standard of review that should be adopted by the Court.

In a recent Madras High Court case of S. Ramakrishnan v State of Tamil Nadu, the Court tried to hold the governor accountable for withholding his assent to a medical admissions Bill. The Court laid down a ‘public interest test’ to hold that the governor may be compelled to provide his assent in certain situations. The Court completely side-lines the issue of gubernatorial immunity under A.361 and holds that:

When situation changes and present kind of situation arises, a different approach has to be taken by the Courts in the interest of the Public. It is well settled law that “Extraordinary situation requires extraordinary remedies”. When public interest requires, this Court has to do its constitutional duties and to address the situation.

Even though the Court ultimately holds that such a situation did not arise in the present case, it has set up a dangerous precedent which might open up a pandora’s box of judicial problems. The Court’s intent to judicially review the governor’s power to withhold assent was laudable. However, the judgment suffers from two major defects. First, it does not provide any reasoning to deal with Article 361. It merely holds that “extraordinary situations require extraordinary remedies.” Second, the standard laid down by the Court, that is the ‘public interest test’ is not judicially sound. This standard is very vague in its conception and might fail the test of “judicial manageability”. The standard is also quite narrow in its conception. This is understood from the application of the test in the Ramakrishnan case where the future admissions of 400 to 500 students were not considered in ‘public interest’.

A better and far more superior and judicially sound standard would be the ‘arbitrary and the mala fides’ test. The standard prohibits the use of constitutional power in an ‘arbitrary’ or ‘mala fides’ manner. The use of the power should not be based on ‘irrelevant or extraneous considerations’ and should be guided by ‘good reason’. This is the dominant standard used while judicially reviewing the powers of the executive functionaries under the Constitution. This is the standard used for limiting the president’s power to dismiss the governor under Article 156(1) (See BP Singhal v Union of India) and the power to grant pardons under Article 72 and Article 161 of the Constitution (See Maru Ram v Union of India). This standard has also been used to enquire into the validity of a proclamation under Article 356 of the Constitution (See SR Bommai v Union of India).

This standard of judicial review also flows from the judgment in Nabam Rebia. The Court, here, affirmed Puncchi Commission’s remarks on the governor’s discretionary powers. The Commission noted that: –

…. [T]he area for the exercise of discretion is limited and even in this limited area, his choice of action should not be nor appear to be arbitrary or fanciful. It must be a choice dictated by reason, activated by good faith and tempered by caution. (Emphasis mine)

These remarks, in essence, represent the ‘arbitrary and the mala fides’ test. Therefore, the Court in Nabam Rebia accepted the proposed standard to be used while exercising judicial review over the governor’s discretionary power (including the power to withhold assent). The use of this standard would help in limiting the delay in assent to bills since most governors’ decision to withhold assent is based on arbitrary reasons. This is precisely the claim made in the petitions challenging the governor’s delay in assent to bills. To determine when the delay turns into an ‘arbitrary or malafide’ delay, the Court would have to look at the particular facts and circumstances of each case. The relevant factors to be assessed should be guided by the principle that there should be minimum delay in the assent to bills. The Court could look at a range of circumstances such as the workload of the governor, the amount of time since the bill is pending before the governor, and the reasons given by the governor for not assenting to the bill.

Conclusion

This essay has proposed a sound standard of judicial review for the governor’s power to withhold assent. It identifies the need for judicial review and addresses the possible barriers to the exercise of judicial review of this power. The judicial review of the governor’s powers would help in alleviating executive aggrandizement and legislative-executive tussle. It is important to note that the institution of the governor, which was once understood as an institution of a high constitutional functionary, has been penetrated with politics. This is also evident from the recent appointments of governors where most of them have close connections with the ruling party. This compels one to reconsider the width of the power conferred upon the governor and how much trust can one repose in this functionary.

Guest Post: Can the Governor Indefinitely Withhold Assent to a Bill?

[This is a guest post by Archit Sinha.]

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In March 2023, the Telangana government moved the Supreme Court against the Governor over the delay in giving her assent to ten Bills passed by the state legislature. The state government has levelled the charge of “inaction and omission” on the state Governor. It is notable here that the concerned Article (200) of the Indian Constitution is in fact silent on whether the Governor is required to act on the bills within a fixed timeline or if she is bound to assent to the bills as per discretion. Article 200 simply mentions that “the Governor shall 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.” Neither does it conceive of a fixed time period for the Governor to assent nor does it explicitly assign this task of the Governor under her discretionary powers. Notably, this matter has been dealt with by the Kerala High Court in 2022 where it steered the debate to Article 163, the discretionary powers of the Governor and held that Article 200 was under her discretionary powers, meaning that she was not bound to take or adhere to the Council of Minister’s (“Council”) advice. In this backdrop, Article 163 which concerns the working of the State Council with the Governor has become the point of issue on the Governor’s discretionary powers. It provides for the State Council to aid the Governor except in matters of discretion but it does not deal with situations where there is no clarity if there is discretion to the Governor or not.

Discretion of the Governor: Stands of the High Courts

In addition to the Kerala High Court judgment mentioned above, the High Court of Bombay has also given a completely contrasting judgment on the same matter i.e., of the Governor’s discretionary powers, and Article 163(1). Consequently, there exists a great deal of confusion regarding the nature of the discretionary powers of the Governor. Often in response to this confusion, analogies have been drawn by the courts (Sanjeevi Naidu v State of Madras, U.P. Public Service Commission v Suresh Chandra Tewari) between Articles 163 and 74 which is the corresponding provision for the President’s role with the Central Council. It explicitly binds the President to seek such advice in “exercise of his functions.” I argue that Article 163 has been understood incorrectly which has propped up issues such as the Telangana Governor’s, or the Kerala Governor’s in recent times. The core of the confusion is that the text of Article 163 does not bind the Governor to the Council’s advice unlike Article 74 but as per rulings in this regard (Naidu, Suresh Chandra Tewari) the Governor is understood to be bound by the advice of the unless she has discretion on the matter under the Constitution (Bakshi, p. 487).

The issue is that the Governor, in places where the Constitution is silent on either Council’s advice or discretion (“Vacuums”), is understood to seek and be bound by Council’s advice. In consequence, the functioning of the Governor’s office becomes severely hampered and her power is subjected to review of material even though there is no clarity if Governor is bound by or even to take advice on Vacuums as I will show. I challenge the contemporary interpretation of Article 163 to argue for the need to enact a Constitutional Amendment to Article 163(1) to provide clarity over its scope.

Text and Context

Owing to the pre-42^nd amendment text of Article 74 (1), doubts regarding the nature of advice (binding or otherwise) had arisen. Consequently, the 42^nd amendment act was enacted, making it necessary for the President to act in accordance with this advice (Rai, p. 76).

Post-amendment Article 74(1) binds the President in each case, to [take and to] the advice of the Council. The scheme of article 163, though similar to article 74, cannot be read similarly to post-amendment Article 74 because the latter part of 163(1) differentiates it from 74. It provides for the Council to aid/advise the Governor “except in so far as he is required to exercise his functions in his discretion.” This is supported by the fact that the Constitution explicitly provides for 3 instances where the Governor is required to exercise discretion (Bakshi, p. 488).

These are: (i) Powers of the Governor of Assam under the 6^th Schedule, (ii) Powers of the Governor, appointed as the administrator of a Union Territory, (iii) Functions of the Governor exercising powers under Articles 371(A)(1)(b), 371(A)(2)(b) 371A(1)(d), 371(2), 371(C)(1), 371(F)(g) of the Constitution. The problem, therefore is that as per the ratio decidendi in Naidu in all other instances, just like the President under Article 74, the Governor is also understood to take and act on the advice of the Council (para. 9).

Such reasoning has been supported by Ram Jawaya Kapur v State of Punjab (para. 16),which understood the Governor’s role as “the head of the executive in the State, but it is virtually the council of Ministers in each State that carries on the executive Government.” Moreover, this reasoning is not backed by any analysis of the literature. It simply stemmed from the Court’s understanding of the position of the Governor. This view is incorrect because it overlooks the instances of Vacuums and provides for a blanket requirement on the Governor to act on the advice of the Council, reducing this role to that of a mere communicator despite the wording of Article 163(1). Consider Article 171(3)(e) for instance as a Vacuum. It provides for the Governor to nominate members of Legislative Council as per Article 171(5) only and does not mention discretion or Council’s involvement and neither does Article 171(5). This was precisely the point of issue in the Bombay High Court judgment referred to above. But the Court did not go into the extent of discretionary power here. It simply ascribed a time limit for her to adhere to the Council’s advice. Even as per the prevailing case law (Kapur), the Governor would be understood to be bound by the Council here but such is based on faulty reasoning as Part IV will show.

The purpose of this analysis is to bring out the consequence of this position on the exercise of discretionary powers of the Governor which, read with the decision in Bommai (para. 374)on Article 74(2) leads to the proposition that the Governor, unless specified otherwise, is presumed to be bound by the aid and advice of the Council and has to act in accordance with it. The basis of this advice (material) is always up for judicial review (“Review”).

This inhibits the exercise of discretionary powers of the Governor in the instances she may not be bound by the Council’s advice but is presumed to be. These powers become non-exercisable and the decision taken by the Governor is indirectly subject to review. Secondly, this is a gross oversimplification of the role of the Governor because the reasoning (lack thereof) in Kapur and Naidu proceed with an assumed normativity, regarding the role of the Governor vis-à-vis the President. Consequently, conflating the former with the latter but on a smaller scale.

While Naidu acknowledges the distinct role of the Governor vis-à-vis the President by acknowledging her discretionary powers (paras. 8, 9), it still fails to consider the implications of this proposition beyond just discretionary powers. The fact that the Governor has discretionary powers fundamentally differentiates her position from that of the President. But Naidu conflates this idea and considers discretionary powers as the sole difference between the 2 posts. It sees the Governor as an extension of the State Council, like the President for Union Council but for the discretionary powers which simply exist for administrative ease. [8]-[9]

I make a case against this view of the Governor as a mere reflection of the President, based on a conflation of the roles by attacking the interpretation of the current text of Article 163 and bringing out an interpretative fallacy in the Constitution.

During the debates, an amendment to Article 163(1) was proposed to allow for the Governor to be advised even while exercising discretion. At the same time, it was also clarified by Dr. Ambedkar that “the President is bound to accept the advice of his ministers in the exercise of all of his functions but 143[163] provides discretion to the Governor,” thus differentiating Governor from the President. The amendment was rejected and the clarification was supported by the members and later by Dr. Ambedkar. This goes to bring out the bearing that discretionary powers have in differentiating the role of the 2 Constitutional Heads.

Secondly, H.V. Kamath had moved an amendment to Article 163, removing discretionary powers altogether (Samaraditya Pal, vol. VI, p. 329). In response, Shri T.T. Krishnamachari clarified the scope of 163. He stated that the Assembly had opted to explicitly provide for discretion in 163 as a way of abundant caution to safeguard the Governor’s discretion irrespective of whether the Council has advised or not.

I recognize the character of these Debates and from this exchange, I do not make a normative claim, rather I simply challenge the existing understanding of 163 for lacking any basis to provide for the space to enact a Constitutional Amendment.

The clause on discretionary powers under Article 163(1) has been understood in a syllogistic sense, wherein an erroneous inference has been made leading to the current position of law. An analysis of the text makes this error clear.

For simplicity, I present the text of 163(1) as follows:

Text of the Clause	How the text has been understood
The Council will advise the Governor, except in matters wherethe Governor has been explicitly told to exercise discretion	The Governor will work on the advice of the Council in all matters, exceptwhen the Governor exercises discretion, in which case, advice cannot be tendered

Here, all that can be gathered is that the Governor is to be advised by the Council except in matters of discretion. From the text, it cannot be gathered either that (A) the Governor is bound by the advice of the Council in all cases, or that (B) the Council will advise the Governor in all cases, and (C) nor does it mean that the Council cannot advise where the Governor can exercise discretion. From the text, the only thing that is clear is that the Governor need not be advised by the Council while exercising discretion.

So, the question that remains unaddressed in the text is the question that remains for consideration, i.e., what of cases where Vacuums are present?  The current case law is a product of reading 163 in the shadow of Article 74 which corresponds to (A) for the President, that too only after the amendments, as highlighted above. The proposition as highlighted in (A) is nowhere to be found under the law and the current position of law is a product of importing the binding nature of advice to the President onto the Governor. The basis of this importation is a simplistic understanding of the role of the Governor vis-à-vis the President which considers the former only as an extension of the latter at a smaller stage, as highlighted by the previous part.

Lastly, I present the position of law and how an inference has been made vis-à-vis Vacuums by putting forward 3 positions on discretion and advice vis-à-vis the Governor in the Constitution:

• Governor has explicit discretion (mentioned above),
• Governor will be tendered advice (Article 164, 239AA(5), etc.),
• Vacuums (notably Article 356, 171(3)(e) read with 171(5)).

The case law is clear on (1) but regarding (2) and (3), the points of issue converge on the understanding that the Governor is always bound by advice, like the President in 74. This issue is only exacerbated by the presence of Article 163(2) which makes the decision of the Governor final on the question of “whether any matter is or is not a matter on which the Governor is required to act in his discretion.” This coupled with the lack of discretionary powers in 74 and any provision corresponding to Article 163(2) for the President, implies there to be an over-simplification of the Governor’s role. Because of (2)’s understanding, an imposition of the same has been made on (3) which has then been understood to bind the Governor to (a) take Council’s advice in all matters, and (b) be bound by it but for discretion.

Before the 42^nd amendment, the text of Article 74 was exactly in line with the current text of 163. But after the amendments, there were interpretative changes to 163. To illustrate:

Provision	Text of the Article	Understanding [pre-Amendment]	Understanding[post-Amendment]
Article 74	“There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions”	Uncertain. There were opposing views on the binding nature, so the 42nd amendment was effectuated (Rai, p. 76).	Bound to take and act on advice in all matters
Article 163(1)	“There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far…”	Uncertain, following from the same status of article 74.	Bound by the advice of the Council unless she has discretion on the matter under the Constitution (Bakshi, p. 487).

Note that the amendment never made a reference to 163 yet post-amendment, the scheme of Article 163(1) also got affected. So, we have a situation where the scheme of Article 163(1) was never clear in the first place. Yet owing to an amendment to only Article 74, somehow Article 163(1) has somehow been understood as ‘resolved’ even though the concerned amendment made no reference to Article 163(1). This goes to show that the scheme of Article 163 has never been clear. So, the current understanding of it has no basis but for Article 74, which is itself problematic as highlighted above. There exists scope for a different interpretation of 163(1) that is supported by the text as well. The implications of a textual interpretation point towards a stronger Governor and a limited scope of Review in her decisions because the assumption of being bound has no basis. This may have political implications as the next part will show, but the purpose of my inquiry is to bring out this ambiguity which may be described as a drafting error.

Soli with P.V. Jeevesh & Concluding Remarks

The Bombay HC in Soli was deciding an Article 171 issue where the Governor had made appointments contrary to the Council’s advice. The HC held that the Governor has to “either accept or return recommendations as made by Council” while inferring a “reasonable” time limit for the Governor to do so. The question of whether the Governor had discretion did not even come up and the fact remains that Article 171 is silent on it.

Similar to the Telangana government’s issue, the Kerala High Court in Jeevesh (2022), heard a matter on Article 200 and the Governor’s obligation to assent to bills passed by the houses. Strikingly, the court said “that it cannot fix a time limit for the Governor” following an understanding that Article 200 falls under the discretionary powers of the Governor, even though 200 is a Constitutional vacuum. Now with these contrasting takes at hand, the issue of lack of clarity on Article 163(1) becomes even more pressing.

While plausible arguments exist both for and against granting Governor the discretion in Vacuums, it is my position that the position of the Governor is inherently different from the President and it cannot be seen in the shadow of the latter. Moreover, it is a fact that India follows a parliamentary democracy and the presence of directly elected representatives of the people in decision-making positions is a basic feature of our democracy. This remains unquestionably true for all states in India. Thus, the current state of affairs, i.e., the presence of this ambiguity, strikes at the core of our democratic principles. Though there exist political implications for resolving this ambiguity on both sides, our democratic values should not be sacrificed in the process. Hence the best way to go about resolving this ambiguity is through a  Constitutional amendment. It is also necessary to provide clarity over the scope of the discretionary powers of the Governor as it has bearing on the scope of the Review of material on which the advice was tendered to the Governor.

I have attempted to show that the current understanding of Article 163 has possibly hampered the exercise of discretionary powers of the Governor. Such criticism has only been possible because of the conflated position of law on this matter. Thus, it becomes pressing that this be resolved at the earliest. It remains for consideration whether the ambiguity should be resolved in favour of the Council, in line with the democratic values our Constitution adopts. At the same time it is also truth that this very Constitution also provides for the Governor, a nominated position, some discretion in many instances and the present ambiguity renders it improbable for the issue to be resolved in favour of the former as shown in Part III. While this position for Article 74 was resolved in favour of the former, it remains to be seen what the parliament will decide for Article 163.

Guest Post: Constitutional Culture and the Governor’s Actions in Punjab

[This is a guest post by Anmol Jain.]

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Recent events in Punjab have, once again, cast sharp scrutiny upon the office of the Governor. The events that transpired in Punjab could be summarized as follows. Amid several allegations of the BJP’s attempt to entice the ruling AAP government’s MLAs, the Punjab cabinet decided to hold a special session of the assembly to vote on its confidence motion. On September 20, 2022, the Governor of Punjab, and in my opinion rightfully, ordered to summon the assembly to meet on the 22^nd. For (actual) reasons that may only be deduced from the overall political situation prevailing in the country, the Governor decided to withdraw the order the next day. In his defense, the Governor quoted a legal opinion sought from ASG Satya Pal Jain that stated that “there is no specific provision regarding summoning of the Assembly for considering the ‘Confidence Motion’ only in the Punjab Vidhan Sabha Rules of Procedure and Conduct of Business.” On the 24^th, however, the governor conceded to the government’s proposal to summon the assembly when the cabinet rephrased the need for summoning to discuss certain other government business. The Chief Minister tabled a confidence motion when the assembly met on the 27^th. 

Keeping the appropriateness of the steps to seek an opinion from ASG instead of the Advocate General of the state aside for the purposes of this blog, there are multiple reasons for which the decision of the Governor to withdraw his first order summoning the assembly does not attract confidence under my reading of the Constitution and Punjab Vidhan Sabha rules.

Article 174 of the Constitution deals with the power of the governor to summon state assembly, and it states that:

(1) The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session …”

As my co-author and I discuss at length in this piece, after having deliberated upon the design of the governor’s office in much detail and across several sessions, the Constituent Assembly finally decided to choose a nominated office of the governor that would be bound to function with the aid and advise of the council of ministers. The governors, therefore, are afforded no discretion on the question of summoning the state assembly, except in two scenarios – where the council of ministers fails to advise the governor to summon the house within six months of its last session (to save the very Constitution from being violated); and where the opposition party/parties intend to move a motion of no-confidence against the government (to secure inherent coherency in the reading and operationalization of the design of the parliamentary system as envisaged in the Constitution). Neither of these two scenarios is applicable in the present situation; therefore, I argue that it is wrong for the Governor to withdraw his order acting in his discretion.

Before analyzing the reasons forwarded by the ASG, it is crucial to understand the timeline of events to better understand the Governor’s perception of his constitutional office. When the original order summoning the assembly was issued on the 20^th, the Governor seemed to be acting with the aid and advice of his council of ministers, as the cabinet had decided in this regard on the very same day. It would not be wrong to assume that the Governor had already decided on the appropriateness of his action on the 20^th before issuing the order. Concerns about inappropriateness, if any, would have been communicated to the cabinet, and the order would have been released only upon being satisfied with the cabinet’s response. Therefore, had the natural course of events followed (as someone following the constitutional procedures, in essence, would predict), the Governor would have simply explained his reasons for summoning the assembly to the Leader of Opposition and the BJP President when they approached him the next day. What perplexes me is the need for a post-facto legal opinion for matters that are usually regular for a governor. If not partisan functioning, nothing could explain this strange but not so strange turn of events.

The ASG mentioned in his opinion that “there is no specific provision regarding summoning of the Assembly for considering the ‘Confidence Motion’ only” in the Vidhan Sabha rules. But does the summoning of the Assembly need to be justified against one of the matters listed in the Vidhan Sabha Rules? Do the Vidhan Sabha rules even enlist all the matters for which the assembly could be summoned? My reading of the rules and understanding of their purposes suggest otherwise.

The rules governing the procedure and conduct of the business of the assembly are a set of rules to keep the house in order. They inject certainty and continuity into the functioning of the assembly. While providing the mechanisms by which a motion may be moved either by the government or a private member of the house, they are limited to detailing the procedural norms around the introduction, discussion, and passing of the motions. The rules do not and certainly cannot comment on the substance of the motions, given the very nature of the parliamentary business. I understand that the rules generally separate no-confidence motions from other parliamentary business, but this fact alone cannot lead to the conclusion that the absence of a provision for the introduction of a confidence motion would make summoning of the Assembly for moving a confidence motion unwarranted. The rules guide the manner in which the business of the assembly is to be conducted; it does not define the contours of the parliamentary business.

I do not want to restrict this piece to the analysis of the Punjab governor’s actions. It would be a fault to assess it in isolation. The violations of constitutional norms regarding the functioning of the gubernatorial office abound. From Kerala to West Bengal and Tamil Nadu to Rajasthan, and now Punjab, there have been multiple episodes of spats between the elected government and the nominated governor. In this context, I believe that it is utterly important that we start differentiating between matters that are open for political battles (matters for which there is some sense in letting the system choose a winner at a point in time while keeping the battles alive for the future) and those matters, that are so fundamental for the very system to survive, that short-term political battles by power-seeking political parties should not be able to change their fate.    

In conclusion, I’d only say that constitutions, by their very nature, are fragile. It demands a whole lot of compromises, self-discipline, and sincerity from both the political elites and the commoners for it to survive. Dr. Ambedkar famously stated at the conclusion of the Constituent Assembly that “However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good, it will prove to be good.” I’d go a step further from Dr. Ambedkar. In my opinion, for the success of a constitution, a sense of responsibility is not only required of the people who are implementing the constitution but even from the true sovereign, the people. It is the people, above anything, that constitute and further the democratic culture; bereft of which, any exercise of the constitutional project is doomed to fail. 

Guest Post: The Governor’s Pardoning Powers – Statutory or Constitutional?

[This is a guest post by Pradhyuman Singh, first posted on the Proof of Guilt blog, and cross-posted here with permission.]

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Introduction

On 18^th May 2022, the Supreme Court ordered the release of A.G. Perarivalan, a conspirator in the assassination of former Prime Minister Rajiv Gandhi, by exercising its inherent power under Article 142 of the Constitution. Perarivalan, having been found guilty on a number of charges, the State of Tamil Nadu wished to issue a pardon in his favour. To this effect, the Council of Ministers of Tamil Nadu advised the Governor to issue a pardon. The power of the Governor of a State to issue pardons is traceable to Article 161 of the Constitution. As granting pardons is a function of the Governor, it is also pertinent to read this power/function with Article 163 of the Constitution. Article 163 requires the Governor to exercise her functions on the aid and advice of the Council of Ministers. Therefore, the Governor is mandated to act on this advice, being the nominal Executive Head of the State.

In this case, the advice of the Council was tendered on September 9, 2018 and no action was taken by the Governor. Instead, the Governor submitted the matter to the President for his consideration. The Governor used this reason as a justification for the delay in implementing the mandatory advice of the Council. The Supreme Court held that such abstinence was in violation of the Governor’s duty under the Constitution. Thus, to do complete justice, the Supreme Court itself ordered the grant of pardon in favour of Perarivalan, resulting in his release. 

Predictably there has been considerable publicity on this order of the Supreme Court. Amongst the various opinions on the order, (Retd.) Justice V. Parthiban, an erudite judge of the High Court of Madras has also expressed his criticism on many fronts. One particular criticism was that the Supreme Court did not consider the attraction of Section 435 of the Code of Criminal Procedure, 1973 (“CrPC”) to the case. This specific contention will be the focus of this post.

Sections 432-434 of the CrPC provide a statutory power to the President/Governor to remit, commute or suspend punishment of offences. Section 435 provides that if the State Government (i.e. the Governor, as per Section 3(60), General Clauses Act, 1897) wishes to exercise power under Section 432 or 433, and-

1. The offence in question has been investigated by the Central Bureau of Investigation; or
2. The offence involved damage to property of the Central Government; or
3. The offence was committed by an employee of the Central Government,

– the Governor would be obligated to exercise such powers only after “consultation” with the Central Government. “Consultation” here has been interpreted to mean concurrence by the Supreme Court (Union of India vs V. Sriharan). In the facts of this case, the investigation of the offences was carried out exclusively by the Central Bureau of Investigation, thus attracting Section 435 of the CrPC.

At first sight, it may seem that such powers of the Governor under the Constitution stand on a different footing from the statutory power. In no manner can the provisions of the CrPC control the ambit of Article 161 of the Constitution (which stipulates no such requirement of consulting/concurring with the Central Government). However (Retd.) Justice Parthiban emphasises that the decision rendered by the Supreme Court in Sriharan (by a Constitution Bench nonetheless) requiring mandatory concurrence of the Central Government would then be rendered completely nugatory. All that would be required is for the Governor to claim that her power is being exercised under the Constitution and not the CrPC. The entire scheme of statutory powers of the Governor/President to remit, commute or suspend sentences would become redundant.

Further, the Supreme Court on another occasion (K.M Nanavati vs State of Bombay) has also held that Articles 72 and 161 embody the “prerogative power” of the President/Governor. Since there is no express provision in the Constitution saving these provisions from legislative interference, the English common law as to Prerogatives applies to the pardoning power under our Constitution. As a result of this, these powers may be fettered and controlled by legislation. Thus, what would otherwise be a simple matter of examining the relationship between the statute and the Constitution becomes complex. This is due to the scheme of the CrPC historically having analogous powers of remission, commutation and suspension of sentences ever since its recognition in the Code of Criminal Procedure, 1898 (the predecessor to the present CrPC).

This post will enquire into the context with which parallel powers of remission, commutation and suspension exist in our statutory framework, despite our Constitution exhaustively providing for the same. Accordingly, we may determine the relationship between these laws and the legal implications that follow.

History of the Code of Criminal Procedure

The Code of Criminal Procedure, 1898 (“Code”) first recognised the power of the Governor-General of British India to remit, commute and suspend punishments of offences. This power found expression in the form of Sections 401 and 402 of the said Code. At the time, there existed no grundnorm resembling the Constitution, and so the power of the Governor General was exclusively governed by the aforementioned provisions of the Code.

This changed with the eventual enactment of the Government of India Act, 1935 with Section 295. Section 295 was the template for the drafting of Article 72 and 161 of the Constitution, which vested the power to suspend, remit or commute a sentence with the Governor-General as well. The phraseology adopted by Section 295 is as follows-

“Where any person has been sentenced to death in a Province, the Governor-General in his discretion shall have all such powers of suspension, remission or commutation of sentence as were vested in the Governor-General in Council immediately before the commencement of Part III of this Act…” [Emphasis Supplied]

Thus, the Government of India Act, 1935, a legislation passed in the British Parliament, gave deference to ordinary laws to regulate the powers of the Governor General in this respect. The intent behind such a provision in the Government of India Act, 1935 was to merely give passive recognition to the power of the Governor General (which was to continue to operate through the statute, i.e. The Code of Criminal Procedure, 1898) and to make clear that such powers would not interfere with the King’s power to issue pardons or remit, commute or suspend sentences (as provided in Section 295(2)). In this manner, the statutory framework of the Code had a functional purpose in recognising the power of the Governor-General. The provisions of the Code worked in perfect harmony with the Government of India Act, 1935.

Such was the arrangement until the enactment of our Constitution. Section 295 of the erstwhile Government of India Act, 1935 was significantly changed to give us what we have as Articles 72 and 161 today. As is clear from the language of these Articles, the power of the President/Governor to remit, commute or suspend sentences was expressly recognised in the Constitution itself. Marking a clear departure from the previous position, there was no deference given to any statutory framework that would determine the powers of the President/Governor. However, the makers of the Constitution chose to still passively recognise the statutory powers of the Governor to remit, commute or suspend sentences. This was in the form of Article 72(3) which provides-

“Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.” [Emphasis Supplied]

The purpose of this clause is to clarify that the power of the President conferred by Article 72(1)(c) should not be construed to exclude the power of the Governor in any manner. However, in stating so, the makers chose to express that the power of the Governor under “any law” was not to be affected. It was equally open for the draftspersons to make a direct reference to Article 161 of the Constitution in this provision. Rather, a conscious decision was made to also recognise any statutory powers vested in the Governor. The implications of this will be examined in the following section of the post.

Moving on, once the Constitution was brought into force, the provisions of the Code were also amended. Article 72(1)(c) of the Constitution recognised the power of the President to remit, commute or suspend the sentence of death. Ordinarily, the President exercises powers with respect to offences in the Union List and the Governor in the State List respectively. An exception is made in the case of death where both the President and Governor exercise concurrent powers. To accommodate this concurrent power, Section 402A was introduced in the Code, vide an amendment. This Section too recognised the concurrent powers of the President and Governor in line with the Constitution.

The next important milestone in the development of law on this issue came in the year 1969. The Law Commission of India was tasked to review the entirety of the Code and recommend comprehensive changes to the law of criminal procedure. This took shape in the form of the 41^st Law Commission Report published in September 1969. This report examined Sections 401 and 402 of the Code. It expressly noted how the statutory powers of the Government were ancillary to the Constitutional powers (Refer Page 248, Para 29.1). Interestingly, it also opined that it would be legally impermissible for the Code to be inconsistent with the Constitution (Refer Page 249, Para 29.4). However despite these findings, they expressed a concern with the State Government’s power to remit, commute and suspend sentences. It was felt that certain offences significantly affected the interest of the Central Government (offences involving the employees and property of the Central Government and offences investigated by the CBI). If a free hand was given to the State Government to exercise powers in respect of such offences, it would result in “difficulties of administration” for the Central Government, according to the Report (Refer Page 252, Para 29.13).

This formed the basis for them to recommend the insertion of a draft Section 402B in the Code. This Section would require the State Government to consult the Central Government if it wished to remit, commute or suspend sentences in the offences described above. This recommendation was accepted by the Parliament when the Code was replaced with new CrPC enacted in the year 1973 in the form of Section 435 of the CrPC.

Having a brief idea of the context of this provision, we may now examine the relationship between the CrPC and the Constitution.

Relationship Between the CrPC and the Constitution

The Constitution’s passive recognition of the statutory power of the Governor may have one of two implications-

1. The Statutory Power is merely a formal recognition of the power of a Constitutional authority. It stands on a different footing from the Sovereign power of the Executive Head. As a consequence, it does not dilute or affect the Constitutional powers of the Governor in any manner. Any statutory provision that would be inconsistent with the Constitution would be void.
2. The Constitutional power is an expression of the Prerogative power of the Executive. Finding its origin in English Common Law, Article 72 and 161 may still be controlled and subject to legislative provisions that may be made to this effect. (This was the reading adopted by the majority in Nanavati)

The first of these two readings would result in the statutory powers of the Governor being completely redundant. If it would be open to the Governor to exercise the exact same powers to remit, commute or suspend sentences in its Constitutional capacity. Any restrictions or mandatory procedures imposed in the statute (such as Section 435, CrPC) may be bypassed. Despite such redundancy, reading “A” would still be a more suitable reading of the law.

This is because, while it is correct that historically, the power of remission, commutation and suspension of sentences lies with the Executive Head, and that these are Prerogative powers that identify the source of authority from English Common Law – however, these conventions have been crystallised in the form of express Constitutional provisions. There are various other examples within the Constitution where principles of common law find express mention. For instance, Article 129 of the Constitutions declares the Supreme Court as a Court of Record. The powers of a Court of Record in English Common Law would include the power to punish for contempt of itself. Despite this, the framers chose to expressly also recognise the Supreme Courts power to punish for contempt in Article 129.

The consequence of this express recognition of common law norms is that such principles get the status of Constitutional law. It would follow that such principles/law are granted the protection of the highest law of the land which could only be altered by a Constitutional amendment. Therefore, Articles 72 and 161 are by themselves sources of power for the President/Governor to exercise power. It would not be correct to state that they are a reflection of the Prerogative powers which find their authority outside the Constitution.

Secondly, Article 245 of the Constitution confers power on the Legislature to make laws. The provision begins with a subject clause stating, “Subject to the provisions of this Constitution…”. This makes it abundantly clear that any ordinary law cannot be in contravention of any Constitutional provision. Further, there is nothing in the context of Articles 72 or 161 that would suggest that this straightforward interpretation of Article 245 should not be followed in reading them.

Thirdly. the language of Articles 72 and 161 marks a clear departure from their predecessor in the form of Section 295 of the Government of India Act, 1935. The regime before the Constitution in express terms gave deference to the statutory regime of the Code, which dictated the extent of powers exercisable by the Governor-General. This position no longer stands after independence, where the prerogative power has been given Constitutional status. If ordinary legislation may be allowed to control Articles 72 and 161, it would result in the said provisions themselves becoming redundant.

As mentioned earlier, Article 74/163 requires the President/Governor to exercise their functions only on the binding aid and advice of the Council of Ministers. The powers under Article 72/161 being one such function, would also have to be performed only on the aid and advice of the Council.

If reading “B” of the law is adopted and ordinary laws could independently guide the power of the President/Governor, it may not be necessary to act on the aid and advice of the Council of Ministers. The statutory framework under which the President/Governor would function, would then allow them to act in their personal discretion, free from their Constitutional obligations. This would be in clear violation of the mandate of Articles 74 and 163 of the Constitution which are a reflection of the principles of Executive accountability. The violation of these provisions in this manner would be contrary to the role of the President/Governor envisaged by the framers as nominal Executive Heads of State. 

For these reasons, the decision of the Supreme Court in Nanavati is incorrect. The passive recognition of the Governors statutory powers in Article 72(1)(c) is only indicative of a parallel legal framework within which the Governor may operate. It cannot be construed to mean that it would be open to the Legislature to dilute and control Articles 72 and 161 by an ordinary legislation. Indeed, at the time of commencement of the Constitution, the Parliament made efforts to ensure that no provisions in the Code conflicted with the Constitution. To this effect, Section 402A recognising concurrent powers of the President and Governor to remit, commute or suspend sentences of death was introduced.

Despite the view of the Court in Nanavati, the Supreme Court has subsequently moved away from this approach. In the case of Maru Ram vs Union of India, a Constitution Bench considered the validity of Section 433A of the CrPC, 1973. This provision disallowed the President/Governor to exercise powers under Section 432 and 433 (for convicts sentenced to a certain class of sentences) if the convict had not served at least fourteen years of imprisonment. The Court held that Section 433A would not be attracted when the Governor exercised powers under Article 161. Both provisions stood on a different footing and it would not be open for a statute to control the Executive Power conferred by the Constitution in absolute and unqualified terms.

This position was reiterated by the Supreme Court in the case of State of Punjab vs Joginder Singh, which involved the interpretation of paragraphs 516-B and 631 of the Manual for the Superintendence and Management of Jails in Punjab. These provisions required Jail Superintendents to submit applications for remission to State Governments after the convict served fourteen years of imprisonment. In the course of interpretation, the Court enquired into the relationship between the said Rules and Section 433A of the CrPC. By relying on Maru Ram, it too came to the conclusion that no legislative scheme (in this case, the Prison Manual) may be inconsistent with the Governors powers under Article 161.

Accordingly, Section 435 of the CrPC too cannot be construed such that it controls the absolute powers of the Governor under Article 161. The Governor would not be required to concur (or even consult) the Central Government for the purposes of issuing any pardons in furtherance of Article 161. In this light, the Supreme Court was correct to not consider the involvement of any provisions of the CrPC in the case of A.G Perarivalan.

Guest Post: The NEET Controversy in Tamil Nadu: an Opportunity to Redefine Gubernatorial Powers

[This is a guest post by Dheeraj Murthy.]

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The recent impasse between the Governor of Tamil Nadu and the DMK led Government regarding the NEET came to a presumable end as the Governor forwarded the Tamil Nadu Admission to Undergraduate Medical Degree Courses Bill, 2021 (“the anti-NEET bill”) to the President for his approval. The development took place in the background of the escalating tensions between the Government of Tamil Nadu and its Governor when the Chief Minister dubbed the Governor as a “postman” to assert that the role of the Governor was to only forward the anti-NEET bill to the President for his approval. In line with the sentiment shared by most political parties in Tamil Nadu, the Chief Minister emphasized the Governors’ lack of authority to grant (or withhold) approval to the anti-NEET bill.  

The controversy began when the Governor returned the anti-NEET bill and deemed it to be “against the interests” of underprivileged students after considering it for over 5 months. In an expected turn of events, the Legislative Assembly of Tamil Nadu was left to readopt the anti-NEET bill and send it to the Governor. The inaction of the Governor after the anti-NEET bill was readopted and sent to him prompted the Chief Minister publicly rebuke him with the “postman” analogy.

Relations between elected State Governments and nominated (often used as a pejorative) Governors have often been fraught with differences, which have since become a staple of Indian politics. However, the ongoing tension between the Government of Tamil Nadu and the Governor serves as a stark reminder regarding the shortcomings of our constitutional scheme concerning the process of law-making.

The ongoing controversy regarding the anti-NEET bill is rooted in the debate regarding the role of the Governor in the process of legislating under the Constitution. Notwithstanding the doubts raised regarding the anti-NEET bill passing the muster of constitutional validity, the developments in Tamil Nadu have thrown light on questions regarding the gubernatorial powers and the propriety expected to be observed by the Governor in the absence of explicit provisions in the Constitution in the process of law making.

Dual Nature of Gubernatorial Functions

Despite gaining Independence from colonial rule, the founders of the Republic of India consciously chose to retain the position of Governor – a decidedly colonial position. The position was redefined to suit the sensibilities of a constitutional democracy and had only limited powers to exercise. Under Article 154, the executive power of a State is vested in the office of the Governor. Significantly, Article 168 prescribes that the Governor along with the Legislative Assembly (and Legislative Council in some states) shall comprise the “Legislature” in every State.

However, unlike the representative character of the Legislative Assembly, the Governor is not elected. The Governor is an appointee of the President to serve at his pleasure (and intended to act as a conduit of communication between the Union and the States) and is incapable of impeachment. Hence, the Governor is a functioning constitutional duality – he is a constituent of the “Legislature” of a State while also wielding executive (albeit nominal) powers.

Significance of the Governor as a Constituent of the “Legislature”

The legislative powers between the Parliament and State Legislatures have been distributed as per the Seventh Schedule of the Constitution in the form of the Union List; State List and Concurrent List. These lists contain the subject matters to be legislated upon in the form of their entries. Under Article 246 of the Constitution, Parliament and State Legislature have exclusive powers to frame laws with respect to entries under the Union and State Lists respectively. However, the Parliament and State Legislature are both empowered to make powers with respect to entries under the Concurrent List.

Crucially, Article 254 provides that in the event of any conflict between laws passed by the Parliament and State Legislatures, the former shall prevail to extent of the conflict. However, Article 254(2) states that for legislation framed by the State Legislature to prevail, it must receive the assent of the President (this remains without prejudice to the power of Parliament to enact a law amending or repealing the state law after receiving the assent of the President).

Logically, this is predicated on the law being passed by the “Legislature” of each state i.e., the Legislative House (typically the Legislative Assembly only) and the Governor. Thus, when a law concerning an entry in the Concurrent List has been drafted and passed by the Legislative House, it is presented to the Governor as per Article 200.  As a constituent of the “Legislature”, the Governor is obliged to declare his intention when a bill is presented for his consideration.

Accordingly, in the case of the anti-NEET bill, the Governor had three modes of exercising his discretion under Article 200 after the anti-NEET bill was passed by the Legislative Assembly. First, to have assented to the anti-NEET bill after which it would be sent to the President for his assent (as required under Article 254(2)). Second, to reserve the anti-NEET bill for the consideration of the President (without expressing his opinion) as the anti-NEET bill pertained to an entry under the Concurrent List (as was done by the Governor ultimately after the anti-NEET bill was readopted). Third, to withhold assent to the anti-NEET bill.

It is significant to mention that under the Constitution, the last option is not in the nature of a veto as the Governor is bound to accord his assent if the bill is re-presented to him regardless of his views. This is because the powers of the Governor are only nominal wherein his sole responsibility is to record his intent as stipulated under Article 200. This responsibility is devoid of any law-making power. The power to frame legislation remains firmly vested in the Legislative Assembly – it being the repository of legitimate democratic will.

Thus, as the subject matter of “medical education” fell under the Concurrent List, the anti-NEET bill was required to receive the assent of the President, without any constitutional obligation incumbent on the Governor to record his views – much less to return it – lest it be void as the NEET is a product of the National Medical Council Act, 2019 viz Parliament enacted law.

Absence of Written Instructions: Taking a leaf out of the colonial legacy

In returning the anti-NEET bill for reconsideration by the Legislative Assembly, the Governor of Tamil Nadu opined that the bill was “unsound” and cited judicial precedent in support of the NEET. Notwithstanding the actions of the Governor to act as a “super-legislature”, there are doubts regarding the basis on which the bill was returned.

Ordinarily, the assent of the Governor is the final step in clearing legislation concerning entries under the State List. However, when laws are framed by the Legislative Assemblies  concerning entries under the Concurrent List, they must necessarily receive the assent of the President (and not the Governor) to become law. This is clearly borne out by a combined reading of Article 200 and Article 254. Hence, it is the President alone who has the competence to assent to any legislation concerning the Concurrent List in order for it to become binding law. 

In these circumstances, the role of the Governor is restricted to merely facilitate (either by assenting or reserving such legislation for the President) communication of such legislation to the President. Moreover, the withholding of assent by the Governor is immaterial as he is bound to accept the bill if it is represented to him for his assent. The present controversy in Tamil Nadu has shed light on the relevance of codifying conventions as there is nothing explicitly stating that the Governor is bound to reserve a bill pertaining to the Concurrent List for the assent of the President. In matters of administration, interpretation of laws should hardly act as a substitute for clear obligations defined in the Constitution.

During colonial rule and specifically under the Government of Indian Act, 1935, the conduct of the Governors of Provinces was informed by an Instrument of Instructions (as prescribed under Section 53 and 54) which laid down the mechanism of gubernatorial functions. The aid of an Instrument of Instructions for Governors was left out of the Constitution as it was felt to be unnecessary in Independent India. The makers of the Constitution dispensed with a written set of instructions and left the conduct of Governors in certain circumstances “entirely to convention”. The debates in the Constituent Assembly also made clear the nominal nature of the functions of the Governor wherein it was ultimately accepted that the Governor was hardly to have “any discretion at all”. It is this background which supplies the restrictive nature of Article 200 and the basis for arguing that the Governor of Tamil Nadu ought to have assented to the anti-NEET bill.

Reigning in Imagined Legislative Powers

Despite being a constituent of the “Legislature”, the role of the Governor is executive and does not become legislative when a legislation is sent for his consideration. As stated earlier, the limited function exercisable by the Governor under Article 200 is limited to three options without any scope to apply his “legislative mind”. In Amar Singhji vs. State of Rajasthan, the Supreme Court affirmed this position and ruled out the possibility to interpret the Governors’ function in declaring his intent as “legislative” when presented with a bill.

Legislating requires cogitating by representatives without any “super legislature” to guide it or supplant its views as the power of legislating remains firmly vested in the Legislature and not with the Governor. In these circumstances, it is evident that any legislation (pertaining to an entry under the Concurrent List) must be sent to the President. However, the controversy in Tamil Nadu has shown that there is a perceptible gap regarding the conduct required from a Governor when presented with a bill pertaining to a concurrent list entry for consideration under Article 200.

 While the makers of the Constitution deliberately chose convention and propriety to be the guiding the conduct of the Governor, there is sufficient scope for ambiguity. The experience in Tamil Nadu has shown that it may be prudent to develop an alternative in codifying gubernatorial conduct. This is as opposed to allowing the discretion of a Governor to assume disproportionate and unintended significance in the process of legislating. Not doing so would dilute the efficacy of legislating and create an unintended conflict between the Governor and the Legislative Assembly.

The Supreme Court’s Madhya Pradesh Government Formation Judgment – II: On the Powers of the Governor [Guest Post]

[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

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[This is the second in a three-part series examining the Supreme Court’s judgment in Shivraj Singh Chouhan v Speaker, Legislative Assembly of Madhya Pradesh and Ors. This is a guest post by Anmol Jain.]

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Recently, the Supreme Court delivered a reasoned order affirming its directions dated March 19, 2020, where it had directed the convening of a session of the Madhya Pradesh Legislative Assembly for deliberation on a single agenda: ‘whether the government of the incumbent Chief Minister continues to enjoy the confidence of the House.’

To summarize the backdrop of the judgment in a very brief manner: on March 14, 2020, the Governor addressed a letter to the Chief Minister, directing the holding of a trust vote on the floor of the assembly on March 16 immediately after his speech. When the assembly convened on the 16^th, the trust vote did not take place and the assembly was adjourned till March 26 on account of COVID-19 outbreak. The Chief Minister justified this by stating that first, the directions issued by the Governor fell under the exclusive domain of the Speaker of the Legislative Assembly; and second, any message of the Governor to the Legislative Assembly must abide by Article 163 of the Constitution, which mandates the Governor to act under the aid and advice of the Council of Ministers. The Governor responded with no change in his stance and directed the Chief Minister to conduct a floor test on March 17.

In this light, the prime question before the Supreme Court was whether the Governor is empowered to issue a direction to the Chief Minister to hold a floor test and prove trust in his government. The Supreme Court responded in affirmative and found the discretionary powers under Article 163 of the Constitution to be the source. The Court also relied upon the decisions in S.R. Bommai and Nabam Rebia to reach its conclusions. In this post, I shall argue against the Supreme Court’s interpretation of Article 163, and show that its reliance on precedent was misplaced.

The Correct Reading of Article 163’s Discretionary Powers

To begin with, Article 163 reads as follows:

(1) There shall be a council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion …

After examining various speeches of the Constituent Assembly Debates – and the final wording of the Article – the Court concluded that ‘[t]he Constituent Assembly thus decided to vest the office of the Governor with certain discretionary powers under the Constitution’, without highlighting the limits of such discretion. This allowed the Court to observe that the scope of the discretion included the power to direct the government to hold a floor test when the Governor was satisfied that the government did not enjoy the confidence of the House. The Court based this upon the collective responsibility of the Council of Ministers to the House, and the obligation to ensure that the House fulfils its function to observe oversight over the affairs of the State:

In envisioning the role of the Governor as a constitutional statesman, care must be taken in course of interpretation to ensure that the balance of power which was envisaged by the Constitution between the executive and the legislature is maintained by the gubernatorial office.

While I shall comment later on the whether the Office of the Governor is apt for participating in the oversight function of the Government by directing a trust vote, the focus here is whether the Court was correct in its reading of the discretionary powers of the Governor. I suggest that it was not.

When the discussion on Article 143 (now 163) of the Draft Constitution was in place, Mr. H.V. Kamath moved an amendment to discard the clause conferring discretionary powers upon the Governor. He justified this amendment on two grounds: first, that the similarly envisaged Office of the President did not have such discretionary powers; and second, that after it was decided that the Office of the Governor would be a nominated post and not an elected one, then ‘it would be wrong in principle and contrary to the tenets and principles of Constitutional Government’ to have such discretionary powers. Mr. Kamath, as well as other members like Rohini Kumar Chaudhury, were here fearful of the past incidents where the Governors had utilized their powers to unsettle democratically elected governments.

The Court relied upon the fact that Mr. Kamath’s amendment was not accepted in an up-down vote to hold that there was no specific limitation of the Governor’s discretion that flowed from the text of Article 163. However, in the Constituent Assembly itself, T.T. Krishnamachari immediately clarified the true scope and meaning of the clause and his statement must be quoted in full for the necessary understanding of Article 163:

Sir, it is no doubt true, that certain words from this Article may be removed, namely, those which refer to the exercise by the Governor of his functions where he has to use his discretion irrespective of the advice tendered by his Ministers. Actually, I think this is more by way of a safeguard, because there are specific provisions in this Draft Constitution which occur subsequently where the Governor is empowered to act in his discretion irrespective of the advice tendered by his Council of Ministers. There are two ways of formulating the idea underlying it. One is to make a mention of this exception in this Article 143 and enumerating the specific power of the Governor where he can exercise his discretion in the Articles that occur subsequently, or to leave out any mention of this power here and only state it in the appropriate Article. The former method has been followed. Here the general proposition is stated that the Governor has normally to act on the advice of his Ministers except in so far as the exercise of his discretions covered by those Articles in the Constitution in which he is specifically empowered to act in his discretion. So long as there are Articles occurring subsequently in the Constitution where he is asked to act in his discretion, which completely cover all cases of departure from the normal practice to which I see my honourable Friend Mr. Kamath has no objection, I may refer to Article 188, I see no harm in the provision in this Article being as it is. It happens that this House decides that in all the subsequent Articles, the discretionary power should not be there, as it may conceivably do, this particular provision will be of no use and will fall into desuetude.

This was not the view of a single member of the Assembly, but was supported by various other members such as B.M. Gupta, Alladi Krishnaswami Ayyar and Shibban Lal Saxena. Therefore, the mention of discretionary powers was merely to indicate those provisions of the Constitution wherein the Governor was explicitly vested with discretionary powers to act and Article 163 (or 143 of the Draft Constitution) could never be utilized by the Governor to justify any other action performed without the aid and advice of the government, including the direction to call for a trust vote on the floor of the assembly. The statement by Dr B.R. Ambedkar shall support this claim beyond any doubt:

“Except in so far as he is by or under this Constitution,” those are the words. If the words were “except whenever he thinks that he should exercise this power of discretion against the wishes or against the advice of the ministers”, then I think the criticism made by my honourable Friend Pandit Kunzru would have been valid. The clause is a very limited clause; it says: “except in so far as he is by or under this Constitution”. Therefore, Article 143 will have to be read in conjunction with such other Articles which specifically reserve the power to the Governor. It is not a general clause giving the Governor power to disregard the advice of his ministers in any matter in which he finds he ought to disregard. There, I think, lies the fallacy of the argument of my honourable Friend, Pandit Kunzru.”

Thus, it becomes clear that the Governor cannot invoke his authority under Article 163 to direct the Chief Minister to prove the trust of the legislative assembly in his Government. But in view of the interpretation provided by the Supreme Court, it seems that Mr. H.N. Kunzru was prophetic when he argued in support of Mr. Kamath’s amendment by stating that retention of the clause granting discretionary powers may give rise to misapprehensions regarding the true scope of Governor’s powers.

The Misplaced Reliance on Bommai and Nabam Rebia

The Court placed huge reliance on two precedents while coming to its conclusions, both of which, I argue, are wrongly read. The court first referred to the decision in Bommai, where the Governor the State of Karnataka, after being satisfied that the incumbent state government had lost its majority in the House, sent a report to the President recommending for the imposition of President’s rule. At the time, the Supreme Court had held the action of the Governor as unconstitutional by recognizing that even minority governments can hold the trust of the House. It stated that it is not within the Governor’s powers to decide whether the government holds the trust of the House, as that ‘is an objective fact capable of being established on the floor of the House’. The Court opined as follow:

Where the Governor is satisfied by whatever process or means, that the Ministry no longer enjoys majority support, he should ask the Chief Minister to face the Assembly and prove his majority within the shortest time possible.

This was quoted with approval by the Court in the Madhya Pradesh Assembly case to buttress its view that the Governor can order for the floor test in the Assembly. I argue that the Court wrongly construed the opinion in Bommai. First, In Bommai, there were no arguments as to whether it is within the powers of the Governor to direct the Chief Minister to prove hold a trust vote and thus, these observations cannot be deemed as binding ratio. Second, these observations merely tells us that whenever the Governor believes that the government has lost the confidence of the House, he must validate this fact through a trust vote in the assembly and not through his own assessment. It leaves open the question as to the process through which such trust vote must take place.

The reading of the Constituent Assembly debates proves that the Governor cannot direct the trust vote to take place unless he acts with the aid and advice of the Council of Ministers while issuing such directions. The other mechanism, as also argued by counsel representing the incumbents of the MP Assembly, is the moving of a no-confidence motion in the House. Unless such motion is moved – which was indeed not moved, as recorded by the Court – the government must be under no obligation to face the trust vote.

One might here argue that allowing the trust vote to take place only after a no-confidence motion is moved would lead to certain constitutionally unwarranted consequences, such as stay of the government for a long time in Office even when it has lost the confidence of the House (for instance, when the House is not in session, effectively disallowing the opposition to move a no-confidence motion). In such scenarios, the observation of the Supreme Court in Nabam Rebia becomes relevant, where it had stated that:

The Chief Minister and his Council of Ministers lose their right to aid and advise the Governor, to summon or prorogue or dissolve the House, when the issue of the Government’s support by a majority of the Members of the House, has been rendered debatable. … And in such a situation, if there is a non-confidence motion against the Chief Minister, who instead of facing the Assembly, advises the Governor to prorogue or dissolve the Assembly, the Governor need not accept such advice.

 

Therefore, when the Assembly is in session, then the process of holding a trust vote must begin with a no-confidence motion, and when the assembly is not in session, then still, the no-confidence motion remains significant for initiating the process, and based on this motion, the Governor is empowered to act even against the aid and advice of the Council of Ministers.

However, the Court underplayed the significance of no-confidence motion and relied on another excerpt from Nabam Rebia, where it was stated that ‘[i]n a situation where the Governor has reasons to believe that the Chief Minister and his Council of Ministers have lost the confidence of the House, it is open to the Governor, to require the Chief Minister and his Council of Ministers to prove their majority in the House, by a floor test.’ This allowed the Court to conclude that whenever the Governor has reasons to believe that the government has lost confidence of the House, ‘constitutional propriety requires that the issue be resolved by calling for a floor test.’ This, I argue, is an unjustifiable position.

Governor as a check on the Council of Ministers?

The role of the Governor is envisaged as a de jure head of the executive government, which functions on the aid and advice of the de facto head of the executive government, the Chief Minister, and his Council of Ministers. It is merely a titular position, with very limited authority to act independently. Therefore, the argument of the Court that this gubernatorial office helps in ensuring that necessary checks and balances remain in place is, though to some extent is correct – but not in the manner in which it was interpreted by the Court. The Court noted, at para 44, that ‘the Constitution recognises that the Governor does possess a power inhering in the office to monitor that the elected government continues to possess the confidence of the Legislative Assembly.’ I believe that the it is proper for the legislature to exercise the checks and balances functions, with the scope of the Governor’s powers to be merely facilitating the legislature. Given the fact that the position of the Governor is nominated, enhancing the powers of the Governor then necessarily leads to increased political disruptions in the working of democratically elected governments. Thus, I believe that the Court’s attempt to first find the source of Governor’s power in Article 163 and then justify it though the checks and balances argument was contrary to the structure of democracy envisaged in the Constitution.

The Supreme Court’s Madhya Pradesh Government Formation Judgment – I: A Question of Jurisdiction [Guest Post]

[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

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[This is the first in a three-part series examining the Supreme Court’s judgment in Shivraj Singh Chouhan v Speaker, Legislative Assembly of Madhya Pradesh and Ors. This is a guest post by Rishav Ambastha.]

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In this post, I analyse the question of jurisdiction that arose in Shivraj Singh Chauhan v. Speaker Madhya Pradesh Legislative Assembly (Shivraj Singh Chauhan case). This follows a series of cases involving the formation of governments with uncertain majorities in the legislative assembly, and consequent constitutional challenges to the direction of either the Speaker or the Governor (“majority formation disputes”). Invariably, the S. Ct. has leaned in favour of directing test of majority on the floor of the house.

Question of Jurisdiction & Article 32

Any claim under Article 32 must preliminarily address two questions of jurisdiction – subject matter jurisdiction (whether the dispute relates to enforcement of rights under Part III of the Constitution); and personal jurisdiction – whether such a right is conferred on the person/entity asserting it (petitioner) and whether such person/entity has the duty to enforce such a right (respondent). Typically, a right under Part III of the Constitution is conferred in favour of citizens/ persons / entities (depending on the nature of the right) against the State.

Pertinently, a “majority formation dispute” involves no question of fundamental rights, as there is no fundamental right to form a government or occupy a political office. Arguably, these are constitutional rights conferred by Part V and Part VI of the Constitution. Therefore, the S. Ct. lacks jurisdiction under Article 32 of the Constitution to entertain such a claim.

Short-Circuiting High Courts

In one of its first interventions in “majority formation disputes” in the 1990s, the S. Ct. in Jagdambika Pal v. Union of India (Jagdambika Pal case), directed holding a special session of the UP Legislative Assembly for a composite test of majority. This intervention arose out of a Special Leave Petition against an interim order of the Allahabad High Court exercising its writ jurisdiction.

Following the Jagdambika Pal case as precedent, S. Ct. has made at least five more interventions in cases of similar fashion. In Anil Kumar Jha v. Union of India, the S. Ct., following Jagdambika Pal, in a terse two-page order, lacking discussion and reasoning on jurisdiction, directed a test of majority on the floor of the house. This trend is evident in “majority formation dispute” cases following it – G Parameshwara v. Union of India, Chandrakumar Kavlekar v. Union of India, and Shiv Sena v. Union of India (Shiv Sena case) and Shivraj Singh Chauhan case (though here, the S. Ct. delivered a judgement). However, in a significant departure from the Jagdambika Pal case, the S. Ct. passed orders in these cases in its Original Writ Jurisdiction (a claim under Article 32), incorrectly short circuiting the jurisdiction of the High Court.

High Courts are the only constitutional courts with jurisdiction in the first instance to entertain claims of “majority formation disputes”. Under Article 226 of the Constitution, High Courts have jurisdiction to enforce rights against the state, not only limited to fundamental rights under Part III, but also other constitutional rights and rights arising under different legislative and executive instruments.

Resolution through Interim Orders

In these cases, the directions for floor tests have arisen out of interim orders and have been disposed of without a judgement (excepting the Shivraj Singh Chauhan case). As a trend, the interim orders include only bare assertions of directions to the relevant authorities for tests of majority on the floor of the house.

An order is the expression of any decision of the court, and the judgement states the ground of the decision. Interim orders are tentative arrangements before the final disposal of the matter. Therefore, without a judgement, there is a lack of clarity on the question of jurisdiction of S. Ct. in “majority formation disputes” under Article 32.

For example, Ramana J in the Shiv Sena case passed interims orders directing a majority test on the floor of the house while still keeping alive “…issues of maintainability, extent of judicial review and the validity of the satisfaction of the governor…” for adjudication “…at an appropriate time”. However, the important question of whether the Court is empowered to issue interim orders in a dispute where it does not exercise jurisdiction was left unanswered – particularly so when the interim orders effectively disposed of the matter, touching upon the disputes agitated. The direction of floor test ought to have come after conclusive determination on the question of jurisdiction.

Court’s Analysis of Jurisdictional problems

As noted above, Ramana J in Shiv Sena case for the first time identified the question of jurisdiction. This came to fore because one of the petitioners had argued that “the jurisdiction under Article 32 of the Constitution cannot be invoked in the present matter and the Governor’s independence should be respected.”.

Chandrachud J. in the Shivraj Singh Chauhan case comes close to elucidating on the question of jurisdiction. In this case, it was argued that that “the writ petition under Article 32 is founded on the need to maintain (i) constitutional morality (ii) constitutional ethos; and (iii) constitutional principles”. Chandrachud J. did not directly address the argument on jurisdiction. However, he rejected the argument that “this Court should be wary of entering the realm of politics‘ where no judicially manageable standards‘ can be maintained, and the outcome prescribed by the court is likely to tilt the political balance.” And in tacit acceptance of the argument of the petitioner, J. Chandrachud in para 31 stated that: “Since the adoption of the Constitution, this Court has on several occasions adjudicated upon whether the actions of the legislative and executive branches adhere to the democratic processes created by the Constitution. As the ultimate arbiter of the constitutional text, this Court is tasked with ensuring that each branch of government operates within the limits placed upon it by the Constitution, including in the realm of democratic politics.”

The analysis of the S. Ct. seems to be this: if the case involves questions of interpretation of the Constitution, especially disputes of democratic processes in relation to the legislature and the executive, the S. Ct. ought to assume jurisdiction. Arguably, the court attempts to trace its jurisdiction to its role as the ultimate arbiter of constitutional text. However, this assumption of jurisdiction violates the constitutional fetter on its power under Article 32 (limited to enforcement of rights under Part III of the Constitution), and expands it to include disputes involving all constitutional rights, effectively closing the jurisdictional gap between Article 226 and Article 32.

Conclusion

The S. Ct. in its role as “the ultimate arbiter of the constitutional text” nonetheless ends up bypassing the constitutional text – Article 32 – pivotal to its own jurisdiction. These interventions demonstrate the position S. Ct. envisages for itself in the constitutional scheme – which is a judicial body with co-equal writ jurisdiction of the High Court, a position not conferred in it by the Constitution. This over-broad assumption of jurisdiction is, arguably, part of a larger trend that divests the jurisdictional High Courts of many of their constitutional functions, vesting them instead in the Supreme Court as the Court of both first – and last – instance.

Guest Post: Engineering a Constitutional Crisis in Maharashtra

[This is a guest post by Ziauddin Sherkar (ziawain@yahoo.co.in)]

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To avoid the large-scale political arrests of the time, the late Bal Thackeray supported the Emergency declared by Mrs. Indira Gandhi in 1975. He even refrained from fielding any candidates against Mrs. Gandhi in her bid to regain supremacy over the Janata Party in the General Elections of 1980. Little did he know then that the legislative travails of a well-respected Janata leader Somappa Rayappa Bommai would come to his party’s aid in their bid to assume power in Maharashtra after 39 years.

Somappa Rayappa Bommai (1924-2007) belonged to that rare crop of Janata politicians who were known for their idealist convictions in political life. He was instrumental in forming the first non-Congress government in Karnataka in 1983 with Ramakrishna Hegde as the Chief Minister. The second Hegde government that returned in 1985 was accused of tapping the phones of opposition leaders that eventually resulted in the landmark Supreme Court decision of Dr. Subramanian Swamy v. Ramakrishna Hegde [1990 AIR 113]. Ramkrishna Hegde resigned over the uproar that followed, paving the way for S.R. Bommai to assume the Chief Ministership of Karnataka on 13 August 1988. Owing to internal numerical turmoil à la every Janata government ever, the then Governor P. Venkatasubbaiah sent a report to the President on 20 April 1989 that Bommai had lost confidence of the majority in the house. He advised the President to exercise his powers under Article 356(1) and issue a proclamation to impose President’s rule in the state; a request President R. Venkataraman acceded to on that very day. The Parliament subsequently approved the President’s proclamation under Article 356(3) and Bommai’s government was dismissed. A 3-judge bench of the Karnataka High Court dismissed Bommai’s writ petition filed against his government’s dismissal. Along with similar cases from Meghalaya, Rajasthan Nagaland, Himachal Pradesh and Madhya Pradesh, Bommai’s case travelled right up to the Supreme Court in the winter of 1993 and on 11 March 1994, the Supreme Court laid down its chef d’oeuvre, the judgment of S.R. Bommai v. Union of India [(1994) 3 SCC 1] (“Bommai”).

There is no clear scheme in the Constitution that lays down the procedure a Governor may follow in the post-election process. This is where two judgments Jagdambika Pal v. Union of India [(1999) 9 SCC 95] (“Jagdambika Pal”) and Rameshwar Prasad (6) v. Union of India [(2006) 2 SCC 1] (“Rameshwar Prasad”) become important. In Jagdambika Pal’s case, where there were two rival claimant’s to the Chief Minister’s post, the court ordered the assembly to be convened for one day while expressly directing, “The only Agenda in the Assembly would be to have a composite floor-test between the contending parties in order to see which out of the two contesting claimants of Chief Ministership has a majority in the House.” As of 12 November 2019, there are 4 probable contenders vying to form the government in Maharashtra out of which 1 i.e. Shiv Sena has clearly stated in a petition filed before the SC that it has the in-principle support of 2 others, the Nationalist Congress Party (“NCP”) and the Indian National Congress (“INC”). Previously, Governor Bhagat Singh Koshyari gave the Bhartiya Janata Party (“BJP”) 48 hours beginning from 9 November 2019 to demonstrate its majority. If the SC could issue extraordinary directions to convene the house for a single day in order to give a chance to rival claimants to prove their majority, surely the Governor could have followed the same route. Additionally, Articles 163 and 164 read with Jagdambika Pal’s case would have provided the Governor necessary legal cover to convene the assembly.

A case more on point is Rameshwar Prasad’s where the President had dissolved the Bihar State Assembly on the Governor’s recommendation even before the first session of the Assembly could have been convened. Although the Ministry of Home Affairs Notification dated 12 November, 2019 doesn’t dissolve the Assembly itself, the Governor of Maharashtra has clearly refused to allow any claimant prove their majority on the floor of the house. In Rameshwar Prasad’s case, the court struck down the notification dissolving the state assembly. However, Y.K. Sabharwal J. in the majority judgment held against the petitioner that the assembly can indeed be dissolved before it is convened for the first time. The Governor Koshiyari seems to have found common ground with this observation. Owing to the BJP’s electoral superiority in both the houses of Parliament, confirmation of the President’s proclamation under Article 356(3) is a mere formality; a formality compulsory for the subsequent dissolution of the state assembly.

According to the Sarkaria Commission’s recommendations, a Governor must follow the following order of precedence in invitations to break a logjam in government formation:

1. An alliance of parties that was formed prior to the Elections.
2. The largest single party staking a claim to form the government with the support of others, including “independents.”
3. A post-electoral coalition of parties, with all the partners in the coalition joining the Government.
4. A post-electoral alliance of parties, with some of the parties in the alliance forming a Government and the remaining parties, including “independents” supporting the Government from outside.

Of the 4 press releases issued by the Governor since 9 November 2019, none specify if the pre-poll alliance of BJP and Shiv Sena were jointly invited in order to satisfy the First stage. The individual invitations to the BJP, Shiv Sena and the NCP would constitute adequate fulfilment of the Second stage, albeit that yielded no result. Since there is no definite existence of any formal ‘post-electoral coalition’, the Third stage is automatically ruled out. The Fourth stage is where the smokescreen thickens. It seems that Governor Koshiyari has chosen to not resort to the last option available to him and has requested the President to declare that “…a situation has arisen in which the Government of that State cannot be carried on in accordance with the provisions of the Constitution of India.” The Sarkaria Commission report has a clear view on this. It states that a political crisis may arise when:

“… after a General Election no party or coalition of parties or groups is able to secure an absolute majority in the Legislative Assembly, and, despite exploration of all possible alternatives by the Governor, a situation emerges in which there is complete demonstrated inability to form a government commanding confidence of the Legislative Assembly.”

‘Complete, demonstrated inability’, being the key-phrase does not pass muster when tested against the widely available reports of not just the INC and NCP, but also certain Independent MLAs extending support to the current claimant. The ‘inability’, if at all has not fully been ‘demonstrated’ and is certainly not ‘complete’. The majority in Rameshwar Prasad’s case did not rule against the Governor because of his taking into account media reports and private intelligence inputs on horse-trading. It ruled against the Governor despite his taking into account such inputs. It was irrelevant what the inputs indicated if a dispensation was willing to demonstrate majority. Even if the Governor of Maharashtra seems intent on heading in the direction of Arijit Pasayat J.’s dissenting opinion that such inputs could very well dictate his decisions under Article 356, in the present case the available inputs themselves point towards a highly probable ‘post-electoral coalition’.

Apart from reiterating the paramount importance of the Sarkaria Commission report Bommai’s case is unequivocally clear on certain propositions. These propositions have found favourable ground in all subsequent, related cases.

“…the proper course for testing the strength of the Ministry is holding the test on the floor of the House. That alone is the constitutionally ordained forum for seeking openly and objectively the claims and counterclaims in that behalf. The assessment of the strength of the Ministry is not a matter of private opinion of any individual, be he the Governor or the President. It is capable of being demonstrated and ascertained publicly in the House. Hence when such demonstration is possible, it is not open to bypass it and instead depend upon the subjective satisfaction of the Governor or the President. Such private assessment is an anathema to the democratic principle, apart from being open to serious objections of personal mala fides.”

 

Unfortunately, the physical manifestation of Shiv Sena’s claim was never allowed to materialize on the floor of the house.

The most obvious critique of the above criticisms of the Governor is that he is under no obligation to provide the exact time as requested by a claimant. The Shiv Sena requested for three more days i.e. 72 hours on 11 November 2019 in order to prove majority. This request was declined by the Governor. Time-bound and time-tested constitutional conventions are the hallmark of any Westminster-style democracy. Are they followed in our country in a manner that the actors involved consider such conventions to be binding on themselves? This question is simply answered by the fact that the entire elaborate procedure followed by the Governor in inviting a political party to form a government is not supported by the set letter of the law but by time-honoured conventions. If such constitutional conventions were held to be non-existent, formation of most coalition-era state and national governments after the 1980s would be questionable. Even the SC in S.P. Gupta v. President of India [AIR 1982 SC 149] spoke extensively about such conventions. A single precedent with a good reason may be enough to establish a convention. In the present case, the Governor himself set the precedent by giving the BJP 48 hours to prove majority. If not 72 hours as demanded, the Governor could have extended the same magnanimity towards the current claimants as he did towards the BJP. Nonetheless, if time-limits of 24 hours for proving majority become precedent, the era of post-poll alliance making in India would come to a thankful end.