Opinion SC advisory opinion on Governor’s role is flawed, let it stay advisory

Aggrieved by this decision, on May 13, the President asked the SC for an advisory opinion under Article 143 of the Constitution. The question: Could the courts lay down a time limit by which governors (and the President) are obliged to act on bills passed by the legislatures? On November 20, a five-judge bench of the SC, in a unanimous (but surprisingly unsigned) opinion, held that the SC cannot impose timelines on governors to clear bills.

The good news: This advisory opinion is not binding on any court. The bad news: It is a flawed opinion.

Not wanting to inflict the 111-page judgment on the reader, let me quote from the summary on page 108: “165.1 The Governor has three constitutional options before him, under Article 200, namely — to assent, reserve the Bill for the consideration of the President, or withhold assent and return the Bill to the Legislature with comments.”

Fine. But what about the time taken by the Governor — the main issue at hand? There, the summary of the judgment goes on to say: “165.3… However, in glaring circumstances of inaction that is prolonged, unexplained, and indefinite — the Court can issue a limited mandamus for the Governor to discharge his function under Article 200 within a reasonable time period, without making any observations on the merits of the exercise of his discretion.”

Excuse me, your Lordships, so what you are saying is that the Governor cannot sit indefinitely on a bill (which is exactly what the two-judge bench also said), but we thought you were going to define “glaring circumstances of inaction that is prolonged, unexplained, and indefinite” and you were going to specify “a reasonable time period” but 165.3 only leaves us where we were. There is a bill in West Bengal pending for nine years. Is that prolonged enough? Or is Governor Ravi’s three-year “sit” the norm?

I think a lot of this confusion could have been avoided if the judges had sought, in these uncharted waters, the views of the framers of our Constitution, just the way the US Supreme Court often relies on the Federalist Papers to derive the intent behind the Constitution.

The issue of the role of governors, the kind or calibre of persons who should occupy the position and whether they should be elected or nominated and their emoluments, was discussed in great depth and at great length by members of the Constituent Assembly on May 31, 1949 but their consensus on what the Governor can and cannot do has been totally ignored in this SC advisory judgment.

So, let me quote from the Chairman of the Drafting Committee, B R Ambedkar. Speaking on May 31, 1949, he said: “The Drafting Committee felt, as everybody in this House knows, that the Governor is not to have any kind of functions — to use a familiar phraseology, ‘no functions which he is required to discharge either in his discretion or in his individual judgment’. According to the principles of the new Constitution he is required to follow the advice of his Ministry in all matters.” (emphasis added)

Ambedkar also summed up his views on why the Governor should be nominated rather than elected and his position in the constitutional scheme of things.

“Having regard to this fact it was felt whether it was desirable to impose upon the electorate the obligation to enter upon an electoral process which would cost a lot of time, a lot of trouble and I say a lot of money as well. It was also felt, nobody, knowing full well what powers he is likely to have under the Constitution, would come forth to contest an election. We felt that the powers of the Governor were so limited, so nominal, his position so ornamental that probably very few would come forward to stand for election. That was the reason why the Drafting Committee thought the another (sic) alternative might be suggested.” (emphasis added)

In this SC advisory opinion, however, the Governor, whose role according to Ambedkar was “ornamental”, has been elevated to Olympian heights. I am sure the King of England would envy the powers of our governors.

In a parliamentary democracy of the Westminster model with a written constitution, it would be extremely iniquitous and an affront to democratic principles to allow an unelected Governor to impose his views on an elected legislature, except if the bill is believed to be unconstitutional and needs to be referred to the judiciary.

Let this advisory opinion stay as it is — advisory. And let the Supreme Court or Parliament set out with total clarity the powers of an unelected and nominated Governor.

Let me end with an interesting quote in the debate on governors in the Constituent Assembly. The quote is from Biswanath Das. Under the 1935 Act, Indian provinces had prime ministers, and Das had been the Prime Minister of Orissa. Here is his direct quote: “Sir, it has been stated that the Governor has very few functions. If he has very few functions under the setup that we have laid down in the new Constitution, then why have him? The Governor is getting a decent salary, and he is getting allowances, and if the functions prescribed for him are not very useful and necessary and not worth the money that we pay, I think it is time that we give the go-by to the Governor.”

Perhaps Dr Ambedkar should have listened to Biswanath Das.

The writer is an adviser at DeKoder. Views are personal