Pavan K. Varma | Governors need to keep soul of Constitution alive
A poet has written: “Hum unki yaad mein aksar unhi ko bhool gaye: In remembering her, I often forgot about her.”Sometimes, I feel, this is true about the functioning of our democracy. We ceaselessly praise it, but in its practice forget its own principles. One instance of this, among others, is the partisan role played by governors in Opposition ruled states. This misuse has not been the monopoly of any one party. Congress governments did so with blatancy, and the BJP, after 2014, is no different. This is a pity, since one expects that as democracy evolves, many of its distortions will be rectified, and not further perpetuated.
The powers and role of governors are defined under Articles 152 to 160 of the Constitution. These clearly state that the governor is appointed by the President of India, and will thus be above party politics, working to “preserve, protect, and defend the Constitution and the law”. However, since the President acts on the advice of the Union council of ministers, many governors, as appointees of the ruling party at the Centre, have behaved more as its agents rather than an apolitical head.
One disturbing instance of misuse by governors of their powers is to delay the approval of duly passed bills by state legislatures. This has assumed serious proportions in Opposition-ruled states like Tamil Nadu, West Bengal, Kerala, Punjab, Karnataka and Delhi. In Congress ruled Karnataka, governor Thawar Chand Gehlot, a loyal member of the BJP-RSS until his appointment, has returned 11 bills passed by the state legislature, seeking clarification. In DMK-ruled Tamil Nadu, governor R.N. Ravi, a BJP appointee, has withheld assent to 12 bills duly passed by the state legislature during the period between October 31, 2023, and April 28, 2024. In Kerala, BJP appointee, the erudite Arif Mohammad Khan, has withheld approval for two years of seven bills, and later referred them to the President. The Trinamul Congress in West Bengal claims that governor C.V. Ananda Bose, also previously a BJP member, has withheld assent to eight bills. In AAP-ruled Punjab, where erstwhile BJP loyalist Banwari Lal Purohit is governor, four bills are on hold.
Article 200 of the Constitution requires bills to obtain the governor’s approval. The governor can suggest amendments, or reconsideration, but must do so “as soon as possible”. If, however, the state legislature repasses the bill, taking into account the governor’s suggestions, or even in its original form, the governor “shall not withhold assent therefrom”. The governor can reserve the bill for the President’s consideration, but only if the proposed law will “derogate from the powers of the high court”.
In November 2023, this matter came up before the Supreme Court (SC). In the case of Tamil Nadu and Kerala, the apex court asked sharply what the governors were doing by sitting over Bills for two to three years. Expressing “serious concern”, the SC opined that a governor cannot “keep a bill pending indefinitely without any action whatsoever”. In doing so, the court said “the governor as an unelected head of state would be in a position to virtually veto the functioning of the legislative domain by a duly elected legislature”. Nor can a governor, once having withheld assent, send a bill reenacted by the legislature to the President to further delay it. Such action, impacts, the SC observed, our federal polity which is a basic structure of the Constitution.
The truth is that in many states governors have become unelected adversaries of the state government, misusing their discretionary powers. They have begun to interpret the Constitution’s express intent of “as soon as possible” to mean however long they want it to be. There could be bills, where the governor has justifiable reasons to suggest reconsideration, or amendments, but this discretionary power cannot be used to hold the state government’s governance agenda hostage. Legislative power vests with the democratically elected government in power. The governor, as an unelected watchdog, and an impartial head of state, can provide his views to the government, but for him to assume the position of judge and executioner of duly passed bills, is to inject in the manifest intent of the Constitution, a mala fide and undemocratic blockade. In this tug of war, the real victims are the people of the state, who have voted to create a government that can implement its promises and live up to its expectations.
The situation is akin to what happens when the SC collegium recommends to the Central government the list of judges to be appointed. The recommendations cannot be turned down by the executive, but no time limit is explicitly specified for concurrence, which essentially means that there is nothing to prevent the government from just sitting on the recommendations indefinitely. The SC has taken adverse notice of this tendency, but the undemocratic practice of delay continues, the vacancy of judges — already glaring in their magnitude — persist, and ultimately it is the people who want speedier disposal of justice who suffer. �
The incessant public sparring between governors and state governments has now become distasteful. Governors appear to have lost all constitutional reticence in openly playing a partisan role. The West Bengal governor recently called chief minister Mamata Banerjee “Lady Macbeth”, refusing to share a public forum with her. Delhi’s lieutenant governor wrote an article in a leading newspaper deeply critical of the democratically elected government. Tamil Nadu and Kerala governors have a running public feud with their governments. If governors have opinions contrary to that of the state government, propriety requires that these are discussed in confidence with the chief minister, rather than becoming a public spat. In Chennai, the governor has stormed out of a formal meeting of the state Assembly even before the national anthem was played, and crossed the line of constitutional balance and restraint on several occasions. His latest salvo was to publicly say that “secularism is a Western concept” and “India has no need for it”, thereby disavowing the very Constitution on which he took oath of office.
The Constitution is not a soulless document to be deliberately misinterpreted. We should never forget, while constantly reiterating its primacy, its real intent and spirit.