Unfortunate That Some Governors Are Playing A Role Where They Should Not : Justice BV Nagarathna

Supreme Court judge Justice BV Nagarathna expressed concerns over the actions and inactions of the Governors of some states, saying that they are not acting as per the role envisaged by the Constitution.

"In today's times unfortunately some of the Governors in India are playing a role where they ought not to and are inactive where they ought to be," Justice Nagarathna said in an address delivered at the NLSIU-PACT conference held in Bengaluru on Saturday (August 3). In this context, Justice Nagarathan quoted the comments made by G Durgabai in the Constituent Assembly Debates regarding the neutrality of Governors that "the governing idea is to place the Governor above party politics, above factions and not to subject him to the party affairs.”

Justice Nagarathna's comments assume relevance in the backdrop of several states filing petitions in the Supreme Court aggrieved by the refusal of the Governors to grant assent to the bills passed by the legislative assemblies. Recently (July 26), the Supreme Court issued notices on the petitions filed by the States of Kerala and West Bengal against their Governors refusing to act on bills for several months. In another petition concerning the West Bengal Governor, the Supreme Court also agreed to examine the scope of the immunity of the Governor under Article 361 of the Constitution. Earlier, the Supreme Court has criticised the Governors of Telangana, Punjab, Tamil Nadu and Kerala for delaying action on bills. The Governor of Tamil Nadu also came under the fire of the Supreme Court for refusing to appoint a Minister despite the Chief Minister's recommendation.

This is not the first time that Justice Nagarathna has expressed concerns about the conduct of Governors. In a lecture delivered at NALSAR University in March this year, she said : "The recent trend has been that the Governor of a state is becoming a point of litigation because of either omission by not considering the bills in assenting or giving opinion on the bills or other kinds of actions which the Governors would take. I feel this is not a healthy trend under the Constitution to bring the actions or omissions of the Governor of a state for consideration before constitutional courts. I think I must appeal that the office of the Governor, though it is called a gubernatorial post, it is a serious Constitutional post. The Governors must discharge their duties under the Constitution in accordance with Constitution, so that this kind of litigation before the law courts reduce. It is quite embarrassing for the Governors to be told to do or told not do a thing. Hence, the time has come where they would be now told, I suppose, to discharge their duties in accordance with the Constitution."

On Federalism

In her address at NLSIU on the topic "Home in the Nation: Indian Women's Constitutional Imaginaries”, Justice Nagarathna also touched upon the topic of federalism.

"The subjects under the States' jurisdiction are not insignificant nor should States be presumed incapable or subordinate. The spirit of constitutional statesmanship and not partisan brinkmanship should be the mantra." 

On Fraternity

She said that fraternity, even today, remains the least understood, least discussed, and perhaps the least practiced of the four ideals spelt out in the preamble of India's Constitution.

"The idea of the unity of the nation being derived from fraternity is even more significant. Fraternity, may perhaps, even be the key for the deepening of our democracy.

It is in this context that I state that the quest towards achieving the ideal of fraternity must begin with an acknowledgment by every citizen of his/her Fundamental Duties which are enumerated under Article 51A of the Constitution.

Present day discourse reflects much to be desired in securing the constructive citizenship and equality that our Founding Mothers rallied for and which alone can 'be the basis of mutual respect and understanding and without which real co- operation is not possible between man and woman'."

State must protect fundamental rights

She appealed to the State institutions and civil society to treasure fundamental rights.

A plethora of rights violations can be prevented by strictly following

1. the procedure established by law

2. respecting the spirit of rule of law

3. consultative and deliberative decision making

She emphasised that our political life should emphasise the hallowed goals enshrined in the Constitution.

She concluded her address by saying :

"Indian constitutional democracy was not destined to greatness, it has earned it. In this arduous struggle to earn our stature as a mature democracy, our founding fathers and mothers have made countless sacrifices. Every successive generation has built this great country. As a part of this wide landscape of diversities, we should introspect as to whether founding ideals have been secured. Such an introspection would also provide a template for conversations about building a better tomorrow. We, as a nation have come a long way, but we have a longer way to go before truly meeting all the ideals of the founders, in the sense that they were envisaged."