After sitting on eight Bills passed by the Kerala assembly for several months – in some cases for over two years – Kerala governor Arif Mohammed Khan gave his assent to one Bill but referred seven others to President Droupadi Murmu for her consideration last month.
Justice Rohinton Nariman, formerly of the Supreme Court, described Khan’s decision as one of the four disturbing developments of 2023. He said so while delivering the Smt. Bansari Sheth Endowment Lecture on ‘Constitution: Checks and Balances’, where he cited three other worrisome developments.
These were the constitutionally flawed judgement of the Supreme Court upholding the validity of the abrogation of Article 370, the Modi regime’s raid on the BBC for a documentary on the 2002 Gujarat riots, and the passage of a Bill in parliament concerning the selection of the election commissioner(s) by a committee in which the Chief Justice of the Supreme Court has been replaced by a government minister.
The Kerala governor took the decision on those Bills a day before the Supreme Court was to take up the Kerala government’s petition accusing the governor of “subverting” the constitution and acting in an “arbitrary” manner by keeping the Bills pending for an “indefinite period.”
He was paralysing the legislative functioning of the elected assembly and subverting its law-making process. His action was not in tune with his mandate in Article 200 of the constitution, which provides that a governor should take a decision as soon as possible on Bills sent to him.
By impeding the legislative functioning of an assembly, the governor, who takes the oath to “preserve, protect and defend the constitution” is flagrantly violating it in letter and spirit.
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Governors sitting on Bills stifle law-making
It is rather extraordinary that while 146 MPs from the opposition parties have been suspended from both Houses of parliament, governments formed by opposition parties in several states are being checkmated by governors who, as appointees of the Union government, are stifling their legislative apparatus.
Unelected governors have no authority to impede the functioning of elected legislatures. When a governor refers a Bill to the president, the Bill is actually referred to the government of India. Those Bills are not directly sent to the president by the governor. They are sent to the Union home ministry, which examines them after getting advice from concerned ministries of the government of India, and submits them to the president.
In other words, those Bills passed by the state legislature and embodying the legislative intent of that assembly get subordinated to the intent of the Union government.
In case the president, acting on the advice of the government, does not give her/his assent, then those Bills are dead. It is quite possible that the seven Bills from Kerala would meet such a fate.
Recommendations of the Sarkaria Commission
The Sarkaria Commission report on Centre-state relations, and its observations and recommendations contained in a separate chapter titled “Reservation of Bills by Governors for President’s Consideration and Promulgation of Ordinances”, are of great relevance in this context.
It invoked the study team of the administrative reforms commission, which had noted that the reservation of a large number of Bills by governors for presidential consideration would be “contrary to the federal spirit of the constitution”.
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The Commission observed that such powers “are intended to subserve the broad purpose of cooperative federalism in the realm of Union-state legislative relations” and when “used sparingly in proper cases, e.g. where the Bill relates to a matter falling clearly within the Union List, it serves a useful purpose”.
It then quoted constitutional expert D.D. Basu, who, referring to the powers of governors to refer Bills to the president, had said, “…its use cannot be extended to such an extent as to install the Union executive over the head of the state’s legislature in matters legislative.”
The Commission recommended that the “needless reservation of Bills for [the] president’s consideration should be avoided”. It is instructive to note that it recommended, “As a matter of salutary convention, a reference should be disposed of by the president within a period of four months from the date on which the reference is received by the Union government”.
The example of Madhya Pradesh
When Atal Bihari Vajpayee was prime minister, Madhya Pradesh chief minister Digvijaya Singh requested him to expeditiously take a decision on three Bills passed by the state assembly and referred to the president by the governor.
The president gave his assent in three months. It demonstrated how, through deliberation and consultation, the constitutional scheme of governance could be adopted effectively.
That example and those utterances of the Commission assume greater significance now.
Constitutional role of governors and unity and integrity of India
In a separate chapter on the ‘Role of Governors’, the Sarkaria Commission observed, “The part which the governor plays to help maintain the democratic form of government in accordance with the constitution is of vital importance”.
“In the ultimate analysis,” it remarked, “due observance of the constitutional provisions is the soundest guarantee of enduring unity and integrity of the nation”.
The manner in which the governors in most opposition-run states act in impeding the legislative functioning of elected assemblies raises questions about their actions to safeguard our unity and integrity.
S.N. Sahu served as officer on special duty to President K.R. Narayan.
