Plea In Calcutta High Court Alleges Bengal Governor "Sitting" On Bill Replacing Him With CM As Chancellor Of State Universities

Petitioners argued that the Governor has been “sitting on the Bill” due to it recognising the Chief Minister as Chancellor of the State Universities, ousting the Governor from the role.

The division bench of Justice I.P. Mukherji and Justice Hiranmay Bhattacharya took up the plea on an urgent motion however, noted that the issue can be decided only after filing of affidavit by the Governor's office.

“The bill has been pending consideration with His Excellency since the last year… we find from the record that this writ application was moved before another bench on 16th May 2023. At that time it was submitted that the tenure of VCs was expiring on 31 May 2023, and the petition was directed to be treated as a representation to the governor… thereafter this writ was taken up on 17th July 2023, when the regular bench directed the matter to appear on 21st August 2023 to decide on maintainability… in our view such a question can only be decided after filing of affidavits and weighing the SC judgements referred above [Nabam Rebia v. Deputy Speaker (2016) and Nalini v. State of TN (2018)]. Whether at all any case has been made out to make the governor “answerable” can only be evident upon filing of affidavits," Court said.

The Petitioners submitted that even though the Bill was pending consideration since mid-2022, the Governor kept on making appointments of VCs in his capacity as Chancellor of the State Universities. [Recently, the High Court had passed directions recognising the interim-VC appointments made by the Governor’s office during the pendency of the aforesaid Bill]

Petitioners argued that the Governor, under Article 161 of the Constitution, had no choice but to either assent to the bill, send it back to the house for reconsideration with/without comments or finally to send it to the President for directions. However, the Governor's actions in this case would tantamount to rejecting the Bill, which is not at all within the scope of his constitutional powers, Petitioners allege.

DSG-I Billwadal Bhattacharya appearing for the Union submitted that the present plea was in no way urgent, and that notwithstanding the “dual bar” on proceedings against the Governor, under Articles 212 and 361 of the Constitution, the present PIL was not genuine and had been politically motivated.

DSG submitted that under Article 212 of the Constitution, no Court could exercise jurisdiction over the conduct of a law maker in their law-making role. It was argued that the Governor, being part of the legislature, could not be hauled up for his actions in his legislative capacity. It was further argued that under Article 361, the Governor would enjoy a personal immunity against any and all proceedings before a Court of law, during his tenure.

DSG finally argued that the petitioners were not genuine litigants and were merely posing to be in public interest, since they were affiliated to the ruling political party, and held positions of eminence as functionaries in the ruling party.

Upon hearing these submissions, the Bench inquired whether the High Court in exercise of its powers under Article 226 of the Constitution could direct the Governor to either pass or send back the bill, since “the makers of the Constitution had never envisaged such a situation”.

Court held that while the objection of the DSG pertaining to the locus standi of the petitioners would be kept on record, in a PIL, the Court would only concern itself with the Constitutional questions raised, which in its prima facie view, the present case had raised.

It concluded, In these circumstances we only direct that an affidavit in opposition be filed by the respondent no. 1 (Chief Secretary to the Governor) and by the office of the Hon’ble Governor. As far as the submissions regarding the locus standi of the petitioner is concerned, we observe that the writ was already admitted on 16th May 2023, and no steps have been taken for its dismissal on this ground. Furthermore the questions involved are constitutional in nature, and in our prima facie opinion deserves to be examined in public interest.

Case: Sayan Mukherjee & anr v Principal Secretary to His Excellency the Governor of West Bengal & anr

Case No: WPA(P) 247 of 2023