by Arjun Sudhir, Associate at CrestLaw Partners, Bangalore
BACKGROUND: IN WHO’S NAME?
The General Clauses Act, 1897, is on face value, a very unremarkable piece of legislation. Its utility among lawyers is often assumed to be equivalent to that of a dictionary. This is because whenever any legislation fails to provide a meaning or definition to any word; the definition clause of the General Clauses Act is referred to, to provide the meaning. One definition catches the eye today, that of “State Government”. The Act says that the State government shall mean the Governor of a State. Correspondingly the Union Government is said to mean the President. This leads one to think of the current “constitutional crisis” in Rajasthan. While this article does not seek to speak on the legal issues surrounding that crisis; it simply seeks to shed some light on what the position of a governor is understood to be and if he can be held to be the State Government for practical purposes.
It is not uncommon for countries to equate national pride with the head of the state. For instance, the national anthem of England is titled ‘God Save the Queen’. India’s Constitution, however, does away with any sort of Personality based Statehood or Nationhood. It is well established that India is a Parliamentary Democracy and a Republic. The earliest Civics lesson a child learns is that the President (and the Governor at the State) is a Constitutional Figurehead and the real power vests with the elected Prime Minister/Chief Minister and his Council of Ministers. Article 166 of the Constitution mandates that all the executive action of the Government of a State shall be expressed to be taken in the name of the Governor. What then is the extent of his discretion and powers?
EXERCISING DISCRETION: TO RULE OR TO REIGN?
While discussing the power of the Governor to grant remissions and commutations to convicted prisoners, Justice Krishna Iyer authoring a Constitution bench judgement observed:
“Are we back to Square one? Has Parliament indulged in legislative futility with a formal victory but a real defeat? The answer is 'yes' and 'no'. Why 'yes'? Because the President is symbolic, the Central Government is the reality even as the Governor is the formal head and sole repository of the executive power but is incapable of acting except on, and according to, the advice of his council of ministers. The upshot is that the State Government, whether the Governor likes it or not, can advise and act under Article 161 the Governor being bound by that advice. The action of commutation and release can thus be pursuant to a governmental decision and the order may issue even without the Governor's approval although, under the Rules of Business and as a matter of constitutional courtesy, it is obligatory that the signature of the Governor should authorise the pardon, commutation or release. The position is substantially the same regarding the President, it is not open either to the President or the Governor to take independent decision or direct release or refuse release of any one of their own choice. It is fundamental to the Westminster system that the Cabinet rules and the Queen reigns.” [Emphasis Supplied]
It is thus categorically affirmed that even a matter as grave as granting of pardon to a convicted criminal- the last resort when all judicial remedies are exhausted, is not subject to the independent exercise of discretion by the Governor or President. It is only on the aid and advice of the Council of Ministers.
AID AND ADVICE
The phrase ‘aid and advice’ is the essence of this entire discussion. It has had a tumultuous history. The trouble started when the Supreme Court in 1971, broke convention and deviated from well-established constitutional precedents from 1955. The Sub-Inspector of the Delhi police- Mr. Sardari Lal and 17 others were dismissed from service on the 4th of April, 1967. This order was purportedly made by a Civil Servant of the Union claiming the ‘personal satisfaction of the President’ and an inquiry was dispensed with, citing the proviso to clause (2) of Article 311 of the Constitution. A 5 judge Constitution Bench of the Supreme Court controversially went on to hold that the function in Clause (c) of the proviso to Article 311(2) could not be delegated by the President to anyone else (here, a civil servant of the Union). In other words, the President had to be satisfied personally that in the interest of the security of the State, it was not expedient to hold the inquiry prescribed by Clause (2). The potential consequences of this were grave- what would become relevant were the personal opinions, whims or views of the Governor/President and not what the elected Cabinet thought fitting. To rectify this error, a 7 judge bench of the Supreme Court was constituted and finally laid the law on this subject to rest. Justice AN Ray, who was part of the bench in Sardari Lal, reversed his view and authored the judgement to overrule it. He observed:
“In all cases in which the President or the Governor exercises his functions conferred on him by or under the Constitution with the aid and advice of his Council of Ministers he does so by making rules for convenient transaction of the business of the Government of India or the Government of the State respectively or by allocation among his Ministers of the said business, in accordance with Article 77(3) and 166(3) respectively. Wherever the Constitution requires the satisfaction of President or the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and 360 the satisfaction required by the Constitution is not the personal satisfaction of the President or of the Governor but is the satisfaction of the President or of the Governor in the Constitutional sense under the Cabinet system of Government.” [Emphasis Supplied]
JUSTICE KRISHNA IYER’S WARNING AND DRAWING THE LINE
What makes for an even more enjoyable read is Justice Krishna Iyer’s Concurring Opinion. His words on the Governor usurping the elected executive’s powers are a relevant warning even today:
“…..bringing dyarchy by a side wind, as it were, and emasculating the plenary authority of Parliament to whom the President is not but the Council of Ministers is responsible. The peril to the Westminster model of government is self-evident and serious if vital business of government is to be transacted de facto and de jure by the head of the State, and the Ministers, who are responsible to the House consisting of the elected representative of the people, are to be relegated to carrying on of the administration only, subject to the over-riding presence, pleasure and powers of their uncrowned republican King.”
There is a propensity in both the public and the media to romanticize the unelected governor as a crusader, against allegedly inefficient or corrupt governments. Populist calls for more power to the governor as well as ‘sympathy for his cause’ are raised. These are unconscionable. There is simply no question of independent decision making by the Governor in his personal capacity. The reason parliamentary supremacy is placed on the highest pedestal is because parliament (or the state assembly in the case of the state) is the voice of the people who elect representatives. Neither judges, nor governors, nor presidents are direct representatives of the people. It is this idea of direct and universal franchise that gives the elected council of ministers the sanctity it deserves. This cannot be jettisoned, however noble the intentions.
The judgement in Shamsher Singh observes that the provisions of the Constitution which expressly require the Governor to exercise his powers in his discretion are contained in Articles explicitly. For instance, Article 200 requires the Governor to reserve for consideration any Bill, which in his opinion if it became law, would ‘so derogate from the powers of the High Court as to endanger the position which the High Court is designed to fill under the Constitution’. Such exceptional articles are the only ones where personal discretion is involved.
It is worthwhile to cite from Justice Krishna Iyer’s opinion once again. He records the words of the first Attorney General of India, Motilal Setalvad. In an interesting excerpt, Setalvad recounts two incidents when the President Dr. Rajendra Prasad sought his opinion. The first was when the President wanted to know if he could prevent the Hindu Code Bill from becoming law. (Dr. Rajendra Prasad’s reservations and differences with the then government regarding the codification of Hindu law on marriage and succession are well known). The Attorney General advised him in clear terms that the President was bound to act according to the advice of his Ministers. On a later occasion, the President wanted to know whether, as the Supreme Commander of Forces, he could send for individual army officers to obtain information about the defence forces. The reply? A categorical no.
 See, Section 3(60)(c), The General Clauses Act, 1897.  See, Section 3(8)(b), The General Clauses Act, 1897.  See, Article 166, The Constitution of India.  Maru Ram and Ors. v. Union of India (UOI) and Ors., (1981) 1 SCC 107.  B.K. Sardari Lal vs. Union of India (UOI) and Ors., (1971) 1 SCC 411.  Samsher Singh and Ors. vs. State of Punjab and Ors, (1974) 2 SCC 831.  Ibid.  See, Article 200, The Constitution of India.
Disclaimer : The opinions expressed by the author are for informational purposes only and and is made in their personal capacity and does not, in any way or manner, reflect the views of The Legal Outlook.