Only Independent Functionaries Must Be Appointed As Governors, Not Like We Have In Kerala : Justice RF Nariman

Former Supreme Court Justice Rohinton F Nariman, yesterday (on December 15), expressed concerns about the tendency of the Governors to sit on bills and termed it a "disturbing fact", making a specific reference to the Kerala Governor.

It may be noted that the Supreme Court is seized of a writ petition filed by the State of Kerala challenging the refusal of the Kerala Governor to grant assent to bills. The Court had criticised the Kerala Governor, asking why he hadn't acted on bills for two years.  On November 29, the Court was informed that while the Governor had cleared one bill, the remaining seven had been referred to the President.

Against this backdrop, Nariman stated:

“The third disturbing fact that we found this year, is a Governor of a traditionally minority government State, Kerala, sitting over bills for periods of up to 23 months. When the Supreme Court rapped him on his knuckles, what did he do? There were 8 such bills. One bill was assented to, 7 were referred to the President. This, again, is a very disturbing feature. If there is a wholesale reference to the President, then the legislative activity of the State comes to a standstill. Unlike our Governor sending back a bill, once it lands at the Centre's door and Centre says no, that's the death of the bill.” 

Nariman expressed these daring viewpoints while delivering the Bansari Sheth Endowment Lecture titled "The Constitution of India: Checks and Balances."

Moving forward with the lecture, Nariman explained that the governor, unlike the president, has four choices when he assents to the bill. He may assent, he may say no, he may send it back with some comments, or he may refer the bill to the president.

Elucidating the same, Nariman referred to the Second proviso of Article 200 (Assent to Bills) of the Indian Constitution. This was referred to provide the audience with an idea as to what kind of bill should be sent to the President. For convenience, the proviso read as:

“Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.”

Setting this background in tone, Nariman said:

“That gives you some idea of what the founding fathers have in mind when they said that it is this type of bill that is sent to the centre. Not every bill.”

At this juncture, he also spoke about the BK Pavitra v. Union of India case. This case enables the Governor to send bills to the President. Nariman, in his lecture, said that this judgment required to be reconsidered.

“But then we have a judgment of our Court, unfortunately. In BK Pavitra's case of 2019 which says that there is no constraint on the governor. The Governor can go ahead and refer every bill that he wants to the president. According to me, this again requires a revisit. It is important for the federal principle to work for the Supreme Court to say in unmistakable terms that look this bill is going to ultimately find its death at the president's door…..So, it only such bills as impact the nation that required to be sent and not others or which impact the judiciary (which is what the proviso says).”

“If you have any Governor in the State, just wholesale sending bills to the President of India, who may then make legislative activity come to a complete standstill in an opposition state, where are we?”

Thereafter, Nariman spoke about the appointment and the term of the governor. He pointed out Article 156 of the Indian Constitution which talks about the governor's term. Clause 1 of this Article specifies that the Governor shall hold office at the pleasure of the President.

“So, despite the fact that he may have a five-year term, it can be cut short at any point without reason.,” Nariman said.

Pertinently, Nariman brought out the case of B.P. Singhal vs Union of India & Anr. In this, the Court categorically held that though no reason need be assigned for discontinuance of the pleasure resulting in removal, the power under Article 156(1) cannot be exercised in an arbitrary, capricious or unreasonable manner. The power will have to be exercised in rare and exceptional circumstances for valid and compelling reasons. Speaking about the same, Nariman stated:

“Now, here again, there was a problem with the original constitution which the Supreme Court has tried to iron out. In a 2010 BP Singhal's Judgment, the Court said that supposed you got rid of a governor (which you are entitled to do. You do not have to give reasons.). But supposed somebody comes to Court and says that it is arbitrary, malafide; the, you will have to tell the Court as to why you did it and you better have a very good reason. Because if you do not then the Court will strike it down.”

Nariman described this as an important step in ensuring that the independent governors are not thrown out and went on to say:

“The corollary, according to me is equally important. You must see that a person who is appointed as Governor is independent. Otherwise, the whole scheme collapses. Because he has two very important functions in his own discretion. One is how he assent to bills, and the other is sending report to centre under Article 356 if there is constitutional breakdown in the State.”

“If you have a Governor who is part of your political party, who has just been kicked up for no other reason but that he should be somehow rewarded, then obviously, you are not going to get an independent assessment under Article 356 or Article 200.”

In view of these averments, Nariman said that the scheme with respect to the governors is fraught with difficulties. He expressed his hope when the Top Court will lay down that only independent functionaries are supposed to fill these esteemed offices.

“The scheme qua governors is also fraught with a lot of difficulties and I am waiting for the day when SC will lay down that it is only independent functionaries who are supposed to fill these great offices. Not the kind of people that we find today. Like, we have in Kerela, where wholesale, after you slept over the bills, you just give them back to the President.”

Lastly, he stressed the need to have a healthy convention of appointing persons who are independent. While saying so, Nariman gave the example of the former president of India, APJ Abdul Kalam.

“You have people who are doing so well in this country; why don't you look for that pool instead of looking for the pool of your own politicians, who you wish to somehow or the other push up.”

Also Read - 'Recent Happenings In Country Disturbing' : Justice RF Nariman On BBC Raids, Governors' Inactions, ECI Bill, 370 Judgment

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The video of the lecture can be watched here.