Your Ministers, Sir, Are Not Just Your Instruments of Government

Enacted in September by the Parliament, the three farm laws have been projected by the central government as major reforms in the agriculture sector that could remove the middlemen and allow farmers to sell anywhere in the country. On the other hand, farmers are protesting at the Delhi border points demanding repeal of these new agri laws. The protesting farmers have expressed concern that the new laws would pave the way for eliminating the safety cushion of Minimum Support Price (MSP) and do away with the mandi system, leaving them at the mercy of big corporates. Most of the opposition parties in Kerala and the Kerala's ruling front are sympathetic to the farmer's cause. The Council of Ministers wanted a special legislative session to pass a resolution against the Farm Bills urging the Union Government for its repeal. However, the Kerala Governor is said to have turned down the proposal of the Council of Ministers to summon a special session of the Kerala Assembly in protest against the farm laws enacted by the central government.

Does the Governor have the power under the Constitution to negate the advice given by the Council of Ministers to summon the Assembly? A Governor is appointed by a warrant issued under the hand and seal of the President under Article 155, based on the advice tendered by the Council of Ministers with the Prime Minister as the head, to the President. Governor not being an elected representative, could he assume an overriding power over Council of Ministers who are the elected the representatives of the people. Apparently, the action of the Governor to ignore Cabinet advice does not appear to be in consonance with robust democratic principles enshrined in the provisions of the Constitution.

Governance in ancient India

King and Cabinet in Britain

Sir Ivor Jennings opened his classic account of Cabinet Government by saying that the Cabinet is the core of the British constitutional system.^[5] He went on to add that it is the supreme directing authority providing unity to the British system of government by integrating what would otherwise be a heterogeneous collection of authorities exercising a vast variety of functions. Bagehot described cabinet as "the executive: a board of control chosen by the legislature, out of persons it trusts and knows, to rule the nation."^[6] Account by Lord Hardwicke of an interview with King George III recounts the following conversation:" Your Ministers, sir, are only your instruments of government." This was too much for Royal patience. The King smiled and said bitterly, "Ministers are the King in this country."^[7]

Although at the beginning of the 18^th century the King in Britain was the executive both legally and actually, his power had been dwindling steadily. Inexorably during this period, the royal authority declined, the royal prerogative faded, and a transfer of power took place from the sovereign to the confidential advisers of the crown, the lords of the cabinet council which later gave rise to the Cabinet form of Government in which the Crown was bound to act on the advice of his Cabinet. The passage of the Reform Bill in Britain in 1832 clarified two basic principles of cabinet government: that a cabinet should be composed of members drawn from the party or political faction that holds a majority in the House of Commons and that a cabinet's members are collectively responsible to the Commons for their conduct of the government.

Governor's position under the Constitution

Undoubtedly our founding fathers implemented the Westminster model of Government where the position of the President and the Governor was essentially that of the British Monarch. Krishna Iyer J figuratively said thus: not the Potomac, but the Thames, fertilises the flow of the Yamuna, if we may adopt a riverine imagery. His lordship added that in this thesis we are fortified by precedents of this Court, strengthened by Constituent Assembly proceedings, and reinforced by the actual working of the organs involved for about a 'silver jubilee' span of time.

Article 163 of the Constitution traces its origins first to Section 50 of the Government of India Act, 1935 and then to Article 143 in the Draft Constitution. Two important expressions find mention in Section 50 of the Government of India Act, 1935, namely, "in his discretion" and "his individual judgment". It is significant and necessary to note that the expression "his individual judgment" did not find mention in Article 143 in the Draft Constitution. This is as clear an indication as any that the Framers of our Constitution did not intend that the Governor could disregard the aid and advice of the Council of Ministers. The absence of the expression "his individual judgment" makes it apparent that the Constitution-Framers were clear that the Governor would always be bound by the aid and advice of the Council of Ministers. Limited elbow room was, however, given to the Governor to act "in his discretion" in matters permitted by or under the Constitution. That discretion however does not extend to the power vested with the Governor under Article 174.

There could be no doubt regarding this position which becomes evident from a perusal of the Constituent Assembly Debates. Significantly, with reference to the Governor's discretionary powers, it was emphasised by Dr B.R. Ambedkar, that: "The Hon'ble Dr B.R. Ambedkar. — … The clause is a very limited clause; it says: 'except insofar as he is by or under this Constitution'. Therefore, Article 163 will have to be read in conjunction with such other articles which specifically reserve the power to the Governor. It is not a general clause giving the Governor power to disregard the advice of his Ministers, in any matter in which he finds he ought to disregard. There, I think, lies the fallacy of the argument of my Hon'ble friend …."^[8] Both in Justice Sarkaria Commission Report on "Centre-State Relations" and Justice M.M. Punchhi Commission Report on "Constitutional Governance and the Management of Centre-State Relations" the observations of Dr B.R. Ambedkar quoted above have been highlighted.

The Governor occupies the position of the head of the Executive in the State, but it is virtually the Council of Ministers in each State that carries on the executive Government.^[9] This position has been settled by the decision of the Supreme Court in Samsher Singh v. State of Punjab.^[10] Ray, C.J. speaking for himself, Palekar, Mathew, Chandrachud and Alagiriswami, JJ. observed at page 836 thus: "For the foregoing reasons we hold that the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vest in the executive whether those functions are executive or legislative in character. Neither the President nor the Governor is to exercise the executive functions personally."^[11] All the seven learned Judges constituting the Bench were unequivocal in their view that the theory of Cabinet responsibility is decisively ingrained in our constitutional democracy and that our Constitution does not accept any "parallel administration" or "dyarchy".

In Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly,^[12] the Hon'ble Supreme Court categorically held that in ordinary situations during the period when the Chief Minister and his Council of Ministers enjoy the confidence of the majority of the House, the power vested with the Governor under Article 174, to summon, prorogue and dissolve the House(s) must be exercised in accordance with the aid and advice of the Chief Minister and his Council of Ministers. In the above situation, he is not permitted to take a personal call on the issue at his own will, or in his own discretion. The historical background and the debates pertaining to Article 174 (and Article 85) of the Constitution lead inescapably to the conclusion that it is only the Governor who may summon the Legislative Assembly, but only on the advice of the Council of Ministers and not suo motu. In other words, the Governor cannot summon the Legislative Assembly "in his discretion".

Krishna Iyer J in his inimitable style in Samsher Singh v. State of Punjab^[13] observed that because the President is symbolic, the Central cabinet 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. His lordship went on to observe that the upshot is that the State Cabinet, whether the Governor likes it or not, can advise and act under Article 161, the Governor being bound by that advice.

The decisions quoted supra unquestionably lead to the conclusion that in the matter of summoning of the Legislative Assembly the Governor is obliged to act on the advice tendered by his Council of Ministers. Indisputably no matter what the personal predilections of the Governor are, summoning of the legislative Assembly following the cabinet advice, would have been an act, in the best of constitutional conventions. Legislative Assembly represents the will of the people. By refusing to summon the Assembly the governor has, albeit for the moment, silenced the people's representatives from making a record of their views in the House of the People.