The function of the appointed governor, which is bound by the constitutional scheme, is always subject to the policies of the elected government and not vice versa.
The function of the appointed governor, which is bound by the constitutional scheme, is always subject to the policies of the elected government and not vice versa.
A recent tweet by the office of Kerala Governor attracts nationwide attention For all the wrong reasons. It said: “…statements of individual ministers which undermine the dignity of the office of Governor, may invite action including withdrawal of Anand”. The Raj Bhavan did not explicitly say that such ministers would be expelled. But, according to the text of Article 164(1) of the Constitution – “Ministers shall hold office during the will of the Governor” – the indication was clear. This became even more apparent when the Governor sent a letter to the Chief Minister of Kerala asking him to take action against him. state finance ministerwho, according to the governor, “stopped enjoying” Governor’s “joy”, The Chief Minister refused to do so.
There are political, constitutional aspects
There are political and constitutional aspects to this unprecedented and curious governor’s gesture. The governor’s other move, meanwhile, called for the removal of vice-chancellors of universities in the state, alleging lacuna in their appointment process, to exercise their statutory power as chancellor. Against ministers, they have no such special power. He can act only within the limits of the Constitution.
The function of the appointed governor is always subject to the policies of the elected government and not vice versa. It is a fundamental principle of India’s constitutional democracy. Constitutional provisions cannot be read in isolation. Article 163(1) states that the Council of Ministers should aid and advise the Governor. However, according to Article 163(2), the Governor can, in his discretion, act as permitted by the Constitution in certain cases. This would mean that the governor is generally bound by the decisions of the cabinet, except when he has a legitimate authority to exercise his discretion, for example, in deciding on the sanction to prosecute a cabinet minister or the Centre. In his judgment as administrator of the territory, by order of the President of India, etc. Article 164, which contains relevant provisions with reference to tweets and letters from the Governor of Kerala, is inseparable from Article 163. Therefore, it follows that unless the cabinet or the Chief Minister advises the expulsion of a minister, the governor cannot cause the exit of a particular minister by “withdrawing pleasure”.
The jurist HM Servai gave an explanation of the spirit of Article 163, which in a way is the preamble to Article 164(1) relating to “pleasure”. He said, “If the Governors have discretion in all matters under Article 163(1), conferring on the Governors an express power to act in their discretion in certain specified matters (via Article 163(2)) would be unnecessary” ( Constitutional Law of IndiaVolume 2, Universal, 1993, p. 2,037).
The democratic reading of Article 164 is found in the decision of the Constitution Bench of the Supreme Court of India Shamsher Singh Vs State of Punjab (1974). In Shamsher Singhfor the purpose of comparison, the Supreme Court took out Dr BR Ambedkar’s introductory statement made in the Constituent Assembly on November 4, 1948, which said: “The President of the United States is not bound to accept any advice. of their secretaries. The President of the Union of India shall ordinarily be bound by the advice of his ministers. He cannot do anything contrary to their advice nor do anything without their advice. The President of the United States of America shall appoint any secretary to any Time can be dismissed.The President of the Union of India has no power to do so, as long as his ministers have a majority in the Parliament.
The same principles apply to governors as well, as Union ministers also hold office “during the pleasure of the President” in accordance with Article 75(2) of the Constitution. The “return of happiness” without the advice of the Council of Ministers, as pointed out by the Raj Bhavan, is a misconception.
a titanic head
Understanding the constitutional meaning of Article 164(1), which is different from its literal meaning, requires a historical reading of the provision. The draft of the Constitution, drafted by the Constitutional Adviser in October 1947, included Article 126, according to which, “the Governor’s ministers shall be chosen and called by (the Governor) and shall hold office during his pleasure”. This article, which was made a part of the earlier draft Article 144, was discussed in detail in the Constituent Assembly. The general discretion of the governor was taken away and the cabinet was given the power to govern. The amendment to the draft Article 144 introduced by BR Ambedkar resulted in the present constitutional scheme of Articles 163 and 164.
Referring to Ambedkar’s speech, scholar Subhash C. Kashyap has put it succinctly, the word “during bliss” was always understood to mean that ‘happiness’ should not continue when the ministry lost the confidence of the majority. be; and the moment the Ministry loses the confidence of the majority, the Governor shall use his ‘pleasure’ in dismissing it” ( Constitutional Law of India, volume. 2., Universal, 2015, page 1,249). Therefore, the article implies that the governor is only a nominal head of state and if the cabinet has a majority, the governor cannot take action against the cabinet.
addressing a concern
The office of the governor has colonial origins. The Government of India Act, 1858 placed the office of the Governor under the supervision of the Governor General. The Government of India Act, 1935 promulgated later came into force with effect from 1st April, 1937. According to this act also, the governors were to act on the advice of the provincial government.
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The potential danger that the continuation of the colonial institution could pose was a matter of concern to the framers of the Constitution. During the deliberations, HV Kamath asked whether there was any guarantee against abuse of power by the Governor. Another prominent member PS Deshmukh’s immediate response was: “Guarantee…. the wisdom of the Governor and the knowledge of the authority who shall appoint the Governor” (Constituent Assembly Debates, June 2, 1949).
But this romanticism of the Constitution had to be translated to the level of judicial realism and pragmatism, which the Supreme Court did Shamsher Singh, Justice VR Krishna Iyer, in that judgment and in his distinctive style, has given the best possible response to the extra-constitutional delusions of the Raj Bhavans: “The omnipotence of the President and the Governor at the state level …. with a clear intent that where power or functions are Expressing it is written in the articles, such business should be dealt with decisively by a ministry accountable to the Legislature and through this, in return towards the people, thus justifying our democracy, rather than dedicating it to a single pinnacle soul. to do, whose divinity is inconsistent with the basics of our political architecture…”
Therefore, the Constitution Bench has to dominate the tweets and letters of the Governor.
Kaleeswaram Raj is a lawyer in the Supreme Court of India.