The Prez reference order is a setback

The five-judge bench’s decision has dealt a big blow to the judicial philosophy on gubernatorial accountability evolved by the top court.

The unanimous decision of the five-judge bench that answered the Presidential reference on the bills passed by state legislatures has been criticised for its indulgence to possible gubernatorial and Presidential arbitrariness.

The top court also opined that the discharge of the governor’s function under Article 200 of the Constitution is a forbidden zone for the court’s adjudicative process.

This leads to genuine concerns about politically motivated gubernatorial actions and omissions going practically unchecked. The notion of a deemed assent, which was developed in the Tamil Nadu case by a two-judge bench, was entirely discarded by the five-judge bench.

When many of the questions now asked were decided earlier in the court’s adjudicatory jurisdiction, a contrary advice was quite strange and uncalled for.

These apart, the advisory jurisdiction invoked by the court poses serious questions about ‘the politics of the judiciary’, to use the title of J A G Griffith’s famous work (1977).

A deconstruction of the 14 questions posed by the President and the advisory opinion on them rendered by the court would show a clear transformation of India’s top court in recent times with a disturbing and centralising trend.

To understand this transformation, one needs to analyse how the executive impacts the judicial processes and decisions, irrespective of the rhetoric on separation of powers. The present advisory opinion is an illustrative case for such an enquiry.

Governors and Speakers are constitutionally envisioned as neutral umpires of our democracy. This, however, remains a dream shattered by the country’s political experience. At a time governors misuse the power under Article 200 of the Constitution, with a view to prevent the state’s legislative ventures, the gubernatorial acts or omissions should be subjected to judicial scrutiny.

Unelected governors cannot sabotage legislative policies of an elected government. This is the reason why in the Tamil Nadu judgment, the Supreme Court held that there is no absolute immunity for gubernatorial actions.

An arbitrary or motivated action of the Raj Bhavan can be challenged before the constitutional court, even according to earlier precedents like Rameshwar Prasad v. Union of India (2006). It proclaimed that there is nothing like absolute immunity for gubernatorial actions. The decision in Nabam Rebia v. Deputy Speaker (2016) reaffirmed this principle.

In Rameshwar Prasad, the Bihar governor’s recommendations to dissolve the Assembly even before the first Assembly session was challenged.

The governor’s defence that it was so done based on the apprehension of the turncoats deciding the new government was not accepted. The court, at least in principle, held that the governor’s act was unconstitutional.

In Nabam Rebia the action of the governor of Arunachal Pradesh who installed a new government, after getting several members of the Assembly disqualified, was held to be arbitrary. The Supreme Court, in that case, effectively reinstalled the earlier Congress government. 

Judicial scrutiny

These cases, and many other instances, show that governors in India often act due to political temptations. Any discretion vested with them is vulnerable to misuse of power. The possibility for abuse of discretion calls for judicial scrutiny. It is a federal imperative.

Even after the five-judge bench decision, the top court had to admonish the Kerala governor for not finalising the appointment of vice chancellors in the state, which was his statutory duty.

The history of governors in India is interesting. The Governor General of British India had supervisory power over governors as per the Government of India Act, 1858.

Later, as per the Government of India Act, 1935, they were to act as the titular heads of provincial governments, as representatives of the British Queen.

Curiously, even provincial heads were aggrieved by the arbitrary actions of the erstwhile governors. During the Constituent Assembly debates, Biswanath Das lamented that a governor even attempted to break his political party.

Rohini Kumar Chaudhuri and H V Kamath opposed the idea of unlimited discretion to governors. On June 2,1949, Dr Ambedkar had to clarify that “the governor under the Constitution has no functions which he can discharge by himself” and that he has only “certain duties to perform”.

Going by the text of the Constitution, the governor was to act as the representative of the Centre on several occasions. The country expected them to act as the statesmen at the states, maintaining the fine balance between the larger interest of the republic and the affairs of the elected government in the states.

The Supreme Court always invoked judicial review whenever gubernatorial actions were arbitrary or motivated. In the Tamil Nadu case, the court went further and said that governors, or even the President for that matter, cannot, in the guise of discretion, prolong the efforts for legislation at the state level.

Thus, timelines were fixed for finalisation of the Bills passed by the state legislature. It also invoked the concept of deemed assent based on which the Tamil Nadu Bills were freed from the gubernatorial clutches. They were made into laws enacted by the people’s representatives.

This was an instance of legitimate judicial activism, warranted by facts and circumstances of the case. Yet, it was only a logical and contextual extension of the well settled and broad principle that governors are answerable to the court and thereby to the Constitution and to the people.

As Justice Krishna Iyer said in a different context, “The court is not an inert abstraction; it is people in judicial power.” (In Re: Mulgaokar, 1978).

This judicial philosophy on gubernatorial accountability evolved by the Supreme Court has suffered a severe setback in the five-judge bench decision on presidential reference.

The court was almost unmindful of the possible aberrations of Raj Bhavans. It is a historic mistake that could have been very well avoided by returning the reference.

When no new constitutional question genuinely arose apart from what was already decided, the court’s advisory jurisdiction emanated unpleasant signals for India’s federalism.

(The writer is a lawyer at the Supreme Court of India)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.