The ‘impartiality’ of a nominated Governor

The Supreme Court of India judgment on the role of Governors and the subsequent advisory given by the Supreme Court Constitutional Bench on the 16th Presidential reference have sparked a debate on the letter and spirit of the Constitution. The words that found a place in the final draft adopted by the Constituent Assembly reflected the spirit of the debates that the august House had witnessed. Incidentally, it was on November 26, 1949, that the Constitution was adopted.

The debate on the role of Governors in the Assembly was one of quality and substance. Many questions were raised about the office, the role and the powers of a Governor in an independent India. At every turn, Babasaheb Dr. B.R. Ambedkar intervened and clarified the carefully thought-out ideas that had gone into the draft.

Doubts were expressed by members about the impartiality of a nominated Governor. They argued that as a nominee of the central government, and not elected by the people, he would be ‘remote-controlled’ and ‘no different from the old provincial governors under the Government of India Act, 1935’. They wanted the office-holder to be above suspicion and feared that they might become a “replica of the Viceroy’s nominees”.

‘A purely constitutional Governor’

Replying to these apprehensions raised by the members in 1947, and later in 1949, before the adoption of the Constitution, Dr. Ambedkar said, “Some members have expressed fear that a nominated Governor will be a nominee of the Centre and not of the Province. I have no doubt that the Governor is required to act on the advice of his Ministers. He is not intended to be an agent of the Centre.” And further, “It must be emphatically stated that the Governor under the Constitution is a purely constitutional Governor. He is there to make the parliamentary system work, not to rival the elected Ministry.”

The next major debate that took place was on the discretionary powers of the Governor. Once again, many members participating in the debate voiced their opposition to such provisions. They said that these reminded them of the 1935 Act, to which Dr. Ambedkar once again responded: “It is wrong to say that by this provision we are reviving the ghosts of 1935. That Constitution gave the Governor a general overriding power. Our Constitution does not.” He was even more categorical as members persisted with their objections: “I hope members will not read into the Constitution more than what is contained in it. The Governor is not to be an interfering authority. His discretion is a very limited discretion.” By ‘limited discretion’, he meant matters such as the selection of a Chief Minister for the formation of a new government after elections or other issues explicitly mentioned in the Constitution. More importantly, he did not envisage a Governor acting as an ‘interfering authority’ — as many present-day Governors in Opposition-ruled States often do.

A relevant discussion today

The discussion on the power of Governors to withhold assent to Bills is even more relevant today. Again, members referred to the 1935 Act. N.G. Ranga made his point succinctly: “A Bill passed by an elected Legislature should not be at the mercy of a nominated Governor. This is dangerous. It is giving the Governor discretionary power under another guise.” Rohini Kumar Chaudhuri also joined the issue: “Sir, the Governor’s power to reserve a Bill for the President is a direct affront to the elected Legislature. It is nothing but the residue of the old powers exercised by the British Governors who were agents of the Viceroy… We have been told many times that the Governor is not to be an interfering authority. But if you give him this power, he becomes exactly that.”

Dr. Ambedkar again allayed the fears expressed by the members: “There seems to be some misunderstanding regarding the nature of this power. The reservation of Bills for the consideration of the President is not a discretionary power to be exercised by the Governor in his own right… It would be a mistake to suppose that the Governor has been given a general overriding authority. He has absolutely none… The reservation of Bills is required only in a limited class of cases — those Bills which may endanger the position of the Centre, or violate fundamental constitutional provisions.”

He made this even clearer when he said: “I want to assure the House that the Governor is not expected to sit in judgment over Bills passed by the Legislature. His functions are formal… Where the Constitution says he shall act on advice, he must act on advice. Where it says he shall act in his discretion, only then may he do so….The Constitution must be read as a whole. No power of discretion is to be inferred unless expressly provided.” He emphatically reiterated, “There is no ground for fear that the Governor will become a rival authority.”

According to Dr. Ambedkar, a Governor in the constitutional scheme does not enjoy any special powers even during an emergency. Governors must act on the advice of the Council of Ministers even in such situations. In fact, he was so confident about the limited role of Governors that he remarked: “The powers of the Governor were so limited, so nominal, his position so ornamental… that I think that very few would come forward to stand for election.”

Such was the understanding of the framers of the Constitution about the powers of the Governor and his role in state administration. They had the foresight to draft a Constitution that still resonates with the realities of our country. But alas, they could not have envisaged a day when a few prejudiced individuals would come to occupy such an ‘exalted’ constitutional office. And they appear determined to prove how misplaced Dr. Ambedkar’s optimism is.

Here, it would not be out of context to refer to the question posed by former President K.R. Narayanan on the 50th anniversary of the Republic: “We have to consider whether it is the Constitution that has failed us or whether it is we who have failed the Constitution.”

Correct ‘vileness’

In the current debate on the role of Governors, it is certainly the individuals concerned who are failing the Constitution. The phrase in the Constitution requiring Governors to declare their decision ‘as soon as possible’ is now being interpreted in a contrary manner — ‘as late as possible’. This is precisely where the courts were expected to intervene, correctly interpret the spirit of the Constitution and give meaningful effect to its words in the context of India today. Unfortunately, the Court too did not adequately consider Dr. Ambedkar’s observation that “if things go wrong under the new Constitution….what we will have to say is that, Man was vile”. The courts would be failing in their duty if they do not act to correct such vileness.

M.A. Baby is General Secretary, Communist Party of India (Marxist)