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...

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

Gyanvi Khanna

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