Governor's Gaffes

The Constitution has adopted a form of government tersely described as based on the 'Westminster model' which is a constitutional monarchy. The President of India is the head of the State. He represents the nation. He is conferred with a large repository of powers. All actions are taken in his name. What is true of the President at the Centre is generally true of the Governors at the State level.

A literal reading of the provisions of the Constitution shows that the President/Governor is endowed with and enjoys an impressive array of powers. But, as Dicey says in his Law of the Constitution referring to Blackstone's Commentaries talking of the Sovereign and the royal prerogative, it has but one fault: the statements it contains are the direct opposite of the truth. The truth is that the President/Governor is only a metaphor for the Council of Ministers on whose advice alone they can act except in very narrow areas clearly defined and confined-Arts 74 and 163. The machinery of government set up by the Constitution follows in essentials the British model- the Westminster form of government. "Not the Potomac but the Thames fertilizes the flow of the Yamuna if we may adopt a riverine imagery," observed Krishna Iyer, J. picturesquely in Samsher Singh (AIR 1974 SC 2192) bringing out the essence of our system of government.

The constitutional position regarding exercise of powers by the President and the Governor is clear. They have to exercise their powers and discharge their functions on the basis of Ministerial advice. It is now well established that the position of the President and the Governor is akin to that of the constitutional monarch in Britain. He is generally bound by the advice of his Ministers except where it is otherwise prescribed constitutionally. He can do nothing contrary to their advice nor can he do anything without their advice.

The position that in the discharge of their functions the President and the Governors have a discretion to disregard the advice of their Council of Ministers is inconsistent with the express conferment of discretionary power on the Governors under Art 163(2), for, if Governors have a discretion in all matters under Art 163(1), it would be unnecessary to confer on them an express power to act in their discretion in a few specified matters. It negatives the view that President/Governor has general discretionary power to act against Ministerial advice. (H.M. Seervai, Constitutional Law of India 4^th Ed. p.2037). The area of discretion is clearly defined and confined. The exposition in the Constituent Assembly Debates is clear.

The only functions which the Head of State can, as per settled constitutional law and conventions, exercise in his discretion are: appointment of the Prime Minister/Chief Minister; dismissal of the Government when it has lost its majority in the House but refuses to quit; dissolution of the Lower House of the Legislature; granting sanction to prosecute a Minister; and in the case of a Governor making a report under Art 356 regarding failure of the constitutional machinery in the State; apart from those expressly conferred by the Constitution like Arts 103/192.

As Seervai points out, "it is enough to say that Samsher Singh's case (AIR 1974 SC 2192) has finally established, it is submitted rightly, that the President is the constitutional head of government obliged to act on the advice of his Council of Ministers." (H.M. Seervai, Constitutional Law of India 4^th Ed. p.2035). The Court unequivocally reiterated the settled legal position that the President/Governor is only the constitutional head, the real power being vested in the Council of Ministers on whose aid and advice the President/Governor exercises his powers and functions. The satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the constitutional sense in the cabinet system of government, that is, the satisfaction of his Council of Ministers. In Constitutional Law, the 'functions' of the President and Governor and the 'business' of Government belong to the Ministers and not to the Head of State, that 'aid and advice' of Ministers are terms of art which in law mean, in the Cabinet context of our constitutional scheme, that the aider acts and the advisor decides in his own authority and not subject to the power of President to accept or reject such action or decision, except , in the case of Governors, to the limited extent that Art 163 permits and his discretion, remote controlled by the Centre, has play.

What is true of the 'satisfaction' of the President/Governor is equally true of their 'pleasure'. Ministers and other constitutional functionaries holding office during the pleasure of the President/Governor is the pleasure in the constitutional sense in the cabinet system of government, that is, the pleasure of the Council of Ministers which in turn really means the pleasure of the Prime Minister/Chief Minister who is the pivot and soul of the cabinet. It is important to remember that a cabinet enters office and goes out with the Prime Minister. A change of the Prime Minister by resignation or death entails a change of cabinet. The withdrawal of pleasure by the Governor personally is non est and of no consequence.

The Constitution Bench judgment in Manoj Narula (2014) 9 SCC 1, it is submitted, lays down the correct legal position. It has been held that the choice of who should be appointed to the Council of Ministers is entirely with the Prime Minister or the Chief Minister. No directions can be issued in this regard. It is a legitimate constitutional expectation that the Prime Minister/Chief Minister would choose appropriate persons. While interpreting Article 75(1) a disqualification cannot be added. It is legitimately expected that the Prime Minister living up to the trust reposed in him would not choose a person with criminal antecedents. This is what the Constitution suggests and that is the constitutional expectation from the Prime Minister. Rest has to be left to his wisdom. What is rightly laid down as being outside the purview of judicial scrutiny and determination is equally beyond the scope of Presidential/Gubernatorial examination and intervention. As long as the government enjoys the confidence of the legislature, it is not for the Head of State to determine who will be in the Ministry.

It is quite a different matter that the President/Governor can express his sage views and bring to bear upon a situation the force of his personality and the weight of his opinion. The President/Governor has the constitutional right and duty to intervene in public affairs of seminal importance and give of his wisdom and experience privately without any fanfare. He can use his high constitutional position to temper the excesses, if any, of the elected representatives. There is always the dialogue constitutionally mandated by Arts 78 & 167. The extent of such dialogue would depend upon the personal equations between the two and their personalities. Such views "may create considerations of political morality or conventional propriety but not of constitutional validity." [Har Sharan Verma v. Charan Singh (1985) 1 SCC 162] They cannot be enforced.

A passage in the Memorandum submitted by Prime Minister Asquith to King George V in 1913 and quoted in the Constituent Assembly Debates expresses the position tersely and precisely: ".......a constitutional monarch in this country is entitled and bound to give his Ministers all relevant information which comes to him; to point out objections which seem to him valid against the course which they advise; to suggest, if he thinks fit, an alternative policy. Such instructions are always received by Ministers with the utmost respect and considered with more respect and deference than if they proceeded from any other quarters. But, in the end, the Sovereign always acts upon the advice which Ministers after full deliberation and (if need be) reconsideration, feel it their duty to offer. They give that advice well knowing that they can, and probably will, be called upon to account for it by Parliament." It is well settled that all these conventions are part of constitutional law.

Moreover these rights cannot extend to the President's/Governor's active participation and interference in governance. It is the Prime Minister/Chief Minister and his government that has to govern. Any inroad into this is not good for the health of the system. Such inroads and interference may appear to be an instant solution or panacea seemingly wholesome and welcome. But it is really not. 'A faint crack develops in the foundation of our government,' to adapt the language of Robert Bork. Nightfall does not come at once, nor does break-down of systems. In both cases there is a twilight when everything remains seemingly unchanged. It is at such times that we have to be aware of change in the air- however slight- lest we are unwittingly overtaken by the imperceptible change. As late President Venkataraman said, the President is like an emergency lamp which becomes active when power fails and becomes dormant when power is restored. There is hardly any occasion to be active as long as the government enjoys the confidence of the legislature. Any other view, apart from being wholly unsupportable, would create a parallel centre of power and make the working of our constitutional democracy difficult, if not impossible. It would eat into the vitals of our parliamentary democracy and run the risk of the concept of our parliamentary democracy being perverted

Doctrine of pleasure has also been hedged in by constitutional limitations. When the Constitution of India provides that some offices will be held during the pleasure of the President/Governor, without any express limitations or restrictions, it should however necessarily be read as being subject to the "fundamentals of constitutionalism", as the Supreme Court has observed. The fundamental of constitutionalism in the present situation is the Westminster form of government with all its nuances: that the Head of State functions and can function only on the aid and advice of the Ministers and that his pleasure is really the pleasure of his Ministry and who should be in the Ministry is the exclusive choice of the Prime Minister/Chief Minister, the only justiciable issue being the person's eligibility, but not suitability.

Even in UK where the pleasure doctrine in its pristine purity originated, for centuries now with a constitutional monarchy in place, Ministers hold office at the pleasure of the Prime Minister. The doctrine has been infused with democratic ethos and constitutional culture. What then to say in a republic like ours with a written Constitution! The Governor's attitude and statements remind one of the times of an absolute monarchy long forgotten and discarded. The first of all laws is to respect the laws, remarked Rousseau. And as Aristotle warned, to seek to be wiser than the law is the very thing which is by good laws forbidden. These sagacious pieces of advice apply to and need to be heeded by all in every office.

How must a President as the constitutional Head of State express his disapproval of any governmental action was answered by a former Chief Justice of Pakistan in the context of whether the President could refuse assent to a Bill validly passed by the National Assembly (when Pakistan had a Constitution like ours and was experimenting with parliamentary democracy). Justice Munir said something like this: "If you think it is a matter of great importance, and you cannot in all conscience accept the measure presented to you, you can and you must (if you are true to your oath) refuse to assent – but having refused assent, you must then resign; the system must go on; people will know why you resigned, and will sort things out with their Governments." This, in essence, delineates the position and functioning of the President and the Governors.

Views are personal.