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EDITORIAL ANALYSIS :  The extra-constitutional delusions of Raj Bhavan

 

Source: The Hindu

 

  • Prelims:Parliamentary democracy, Functions and responsibilities of Governor, state legislature etc

 

  • Mains GS Paper II:State Legislature -Structure, organization, functioning and conduct of business etc

 

ARTICLE HIGHLIGHTS

  • Kerala Governor said that individual Ministers that lower the dignity of the office of the Governor can invite action including withdrawal of pleasure”.

 

INSIGHTS ON THE ISSUE

Context

Governor:

  • The Governor performs the same duties as the President, but for the State.
  • The Governor stands as executive head of a State and the working remains the same as of the office of President of India.

 

Appointment and powers:

  • Derived from Part VI ofthe Indian constitution.
  • Article 153:
    • There shall be a Governor for each State.
    • One person can be appointed as Governor for two or more States.
  • The governor acts in ‘Dual Capacity’as the Constitutional head of the state and as the representative.
  • He acts as a bridge between union and state governments.

 

Constitutional position:

  • Article 164(1): Ministers shall hold office during the pleasure of the Governor.
  • Options under Article 200:
    • He may give assent
    • He can send it back to the Assembly(requesting it to reconsider some provisions of the Bill, or the Bill itself).
    • Reserve the Bill for the consideration of the President.
    • Withhold the assent(not normally done by any Governor because it would be an extremely unpopular action)
  • Reserved for the consideration of the President: Only if the Governor forms an opinion that the Bill would endanger the position of the High Court by whittling away its powers.
  • The Constitution: It does not mention any other type of Bill which is required to be reserved for the consideration of the President.
  • Article 126: Governor’s Ministers shall be chosen and summoned by (the Governor) and shall hold office during his pleasure.

 

Contentions between politics and constitutional facets:

  • Exercise of his statutory power as Chancellor: Ousting Vice-Chancellors of universities in the State, alleging deficits in their appointment process.
  • The function of the appointed Governor: It is always subject to the policies of the elected government, and not vice-versa.
  • Article 163(1):It says that the Council of Ministers must aid and advise the Governor.
    • Article 163(2): the Governor can act in his discretion in certain matters as permitted by the Constitution.
  • Governors cannot cause the exit of a particular Minister by “withdrawing pleasure:unless the Cabinet or the Chief Minister advises the expulsion of a Minister.

 

Judiciary stand:

  • Shamsher Singh vs State of Punjab (1974): The President of the Indian Union will be generally bound by the advice of his Ministers.
    • He can do nothing contrary to their advice nor can he do anything without their advice.
    • The same principles apply to the Governors as well.

 

Why should the Governor not have unlimited powers?

  • The Governor does not reflect the aspirations of the people: It defeats the legislative programme of the elected government, it would be against the spirit of the Constitution.
  • The Constitution does not mention the grounds: On which Governor may withhold assent to a Bill.
  • Position of courts: The courts too have more or less accepted the position that if the Governor withholds assent, the Bill will go.
  • Governor’s role: It does not square with the best practices in old and mature democracies.

 

Overseas practices:

  • United Kingdom: By practice and usage there is no power of veto exercised by the crown in England now.
    • Refusal of royal assent on the ground that the monarchy strongly disapproves of the Bill or that the Bill is very controversial is treated as unconstitutional.
  • The United States: The Presidentis empowered by the Constitution to refuse assent and return a Bill to the House but if the Houses again pass it with two thirds of each House the Bill becomes law.

 

Way Forward

  • Constitutional Law of India(book): If Governors have discretion in all matters under Article 163(1), it would be unnecessary to confer on Governors an express power to act in their discretion in a few specified matters (by way of Article 163(2)).
  • Dr B R Ambedkar(constituent assembly): ‘Pleasure’ should not continue when the Ministry had lost the confidence of the majority.
    • When the Ministry lost the confidence of the majority, the Governor would use his ‘pleasure’ in dismissing it.
  • The Governor is only a titular head of the State: If the Cabinet has majority, the Governor cannot act against the Cabinet.
  • Governor cannot act in an arbitrary manner: Being a high constitutional authority, the Governor cannot act in an arbitrary manner and, therefore, will have to give reasons for refusing to give assent.
  • Rameshwar Prasad and Ors. vs Union Of India and Anr: The Court held: “the immunity granted by Article 361(1) does not, however, take away the power of the Court to examine the validity of the action including on the ground of malafides.

 

 

 

QUESTION FOR PRACTICE

  1. Discuss the essentials of the 69th Constitutional Amendment Act and anomalies, if any, that have led to recent reported conflicts between the elected representatives and institution of Lieutenant Governor in the administration of Delhi. Do you think that this will give rise to a new trend in the functioning of the Indian Federal Politics?(UPSC 2016)

(200 WORDS, 10 MARKS)