Three state governments approaching the Supreme Court seeking its intervention and decision on the roles and responsibilities of governors is an important development in the history of this constitutional democracy. Shorn of its embellishments, the case of the three states — Tamil Nadu, Kerala and Punjab — is essentially one: Whether or not the governors, appointed by the Union government after no consultation with the state governments concerned, have the power to sit in judgment over the decisions of elected legislatures and duly-constituted governments.
As per the Constitution, the executive power of the state is vested in the governor but, in doing so, he will go by the aid and advice of the Council of Ministers. While the Constitution and courts have made it abundantly clear that the governor’s powers have been limited to the extent decided by the Council of Ministers which enjoys the confidence of the elected legislature, some of the governors believe that they derive their powers not from the Constitution of India but from the Raj-era Government of India Act, 1935. Both have similar wordings on the governor’s powers but the substance differs. Just as much as a dominion and a republic differ in substance.
The governors sit on the bills passed by elected legislatures by virtue of a grey area in Article 200 of the Constitution which gives them the power to sign bills into law. The Article clearly defines the governor’s options with respect to a bill — to sign it, return it to the legislature with a note of contention as soon as possible or refer it to the President on specific matters.
While deciding a similar petition moved by the Telangana government against the governor, the Supreme Court recently suggested that the Constitution mandates that a governor act “as soon as possible after the presentation to him of a bill” and that he has no right to delay it indefinitely. It also expressed the hope that the governor would go by the letter and spirit of the statute.
However, some governors, especially in states governed by political parties opposed to the ruling party at the Centre, would have none of it. All the chief ministers of the states which have gone to the apex court have listed the number of bills that have been pending with their respective governors. Some of them are two or more years old, waiting for gubernatorial assent.
The question is not whether governors have the constitutional right and administrative wherewithal to assess the desirability of a bill passed by the legislature. It is received constitutional wisdom that only the judiciary can assess the constitutionality of the bill; its desirability will be decided by the people. The governor, who has no link with the polity of the state, cannot have a role in these decisions, lest it upset the scheme of elected democracy.
It is not that these governors sign no bill or order at all: They do only those of their own choice. And that brings the issue to the critical point. By doing so, these governors exercise a certain veto over the decisions of the elected legislatures and elected governments. This was never the intent of the makers of the Constitution. Perpetuating this self-aggrandisation on their part would amount to undermining the very idea of representative democracy. It is time that the Supreme Court comes out with a full and final settlement of the dispute that is critical to the survival of democracy in India.
