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The role and duty of a State Governor

India fought for long years for swaraj, led by the Indian National Congress. The Viceroy under the British Crown was replaced by the Governor General. That title, too, was eliminated when Independent India emerged. Winston Churchill was opposed to handing over power to Indian leaders, who he described as “rogues, rascals and freebooters.”

Was Churchill a prophet? The Congress-led Opposition in Kerala now asserts that the State’s Governor, a nominee of the Congress party that is in power at the Centre, is authorised to disobey the State Cabinet, stultifying democracy and the Constitution.

India’s constitutional basic structure is democratic and non-negotiable. After the debacle that followed the Chinese military action, the Congress wanted Prime Minister Jawaharlal Nehru to dismiss Defence Minister V.K. Krishna Menon. But Nehru was disinclined. But he had ultimately to yield, since it is the democratic imperative not to leave a discretionary decision to the President.

The Congress in Kerala today appears to be innocent of political and judicial precedents and judicial case law on the point. A seven-judge Bench of the Supreme Court has made the legal position clear in Shamsher Singh’s case.

The court, in Shamsher Singh (1974), laid down that the Indian administrative system is substantially based on the Westminster system where the Queen is bound to follow the Cabinet’s advice except in rare exceptions in which the Cabinet decision is irrational or arbitrary or perverse or plainly and blatantly biased or mala fide. In such an instance, the Governor may have the discretion.

The rule democracy implies is that the Governor is the ceremonial head and real power of administration remains with the Council of Ministers. To assume, as the Opposition in Kerala does, that the Governor has the free and indiscriminate discretion to substitute his judgment for that of the Cabinet is a grave outrage. Can a Governor assume all executive power and refuse to sign legislation passed by the legislature and negative judicial decisions? Then, our Constitution will be reduced to paper tyranny. The implications of the Governor being treated as vested with absolute power is dangerous. Imagine the President of the country acting as the sole ruler, not accountable to anyone except his conscience. Swaraj then becomes a mirage and an absurdity.

The Cabinet system of government, as against the presidential system, virtually makes a monarch or a President a figurehead. Sovereignty is in the hands of the people, represented by their elected deputies, who in the final analysis constitute the Cabinet. Royalty was rejected but the ideology of the crown haunted our Constituent Assembly. That is how the President and the Governor survived verbally. The office of the Viceroy survived in the shape of a Governor-General and ended up as the presidential symbol. But to go back from the President to a symbolic crown with totalitarian powers is absurd.

Political compulsions could make for rare exceptions. That is how in Shamsher Singh the court, after lengthy discussion, ruled that the President was bound by the Cabinet’s decisions and asked: Is the President a cipher? No, a few exceptional situations may still demand the independent judgment of the President. The list cannot be exhaustive as in the matter of the age of a judge where there is a controversy. Even there the President has to consult the Chief Justice of India and act on his advice, not as he pleases to do.

Once we have accepted a Cabinet system of the Westminster tradition, it is bound by guidelines. Until Shamsher Singh is reversed by a larger Bench, or a radical change is effected in the Constitution without violating its basic structure, that judgment will govern the conduct of the Governors and the President. I know of no judgment of the Supreme Court that has dissented with that in Shamsher Singh. The Madhya Pradesh ruling that has been highlighted by the Congress now in Kerala is an egregious folly. Later cases have affirmed Shamsher Singh and provided one or two additional restricted exceptions in consonance with the earlier case. A passage from the Madhya Pradesh ruling by five judges of the Supreme Court confirms this:

“A Division Bench of the Bombay High Court dismissed the Revision Application, but whilst dismissing the application it was recorded by Gadgil, J. as follows:

“‘However, I may observe at this juncture itself that at one stage it was expressly submitted by the learned counsel on behalf of the respondents that in case if it is felt that bias is well apparently inherent in the proposed action of the concerned Ministry, then in such a case situation notwithstanding the other Ministers not being joined in the arena of the prospective accused, it would be a justified ground for the Governor to act on his own, independently and without any reference to any Ministry, to decide that question’.”

In short, unless the present question in Kerala involves issues that are so irrational or grossly contrary to precedent, it is not proper or legal for the Governor to depart from the rule that a Cabinet decision binds the Raj Bhavan.

The founding fathers of the Indian Republic were familiar with the British practice. In constitutional law Westminster was India’s model, not Washington and its presidential system. Here is a passage from the Shamsher Singh judgment:

“Prime Minister Nehru explained the position with political clarity when moving the clause relating to the election of the President:

‘“One thing we have to decide at the very beginning is what should be the kind of governmental structure, whether it is one system where there is ministerial responsibility or whether it is the Presidential system as prevails in the United States of America; many members possibly at first sight might object to this indirect election and may prefer an election by adult suffrage. We have given anxious thought to this matter and we came to the very definite conclusion that it would not be desirable, first because we want to emphasise the ministerial character of the government, that power really resided in the Ministry and in the Legislature and not in the President as such. At the same time we did not want to make the President just a mere figurehead like the French President. We did not give him any real power but we have made his position one of great authority and dignity. You will notice from this Draft Constitution that he is also to be Commander-in-Chief of the Defence Forces just as the American President is. Now, therefore, if we had an election by adult franchise and yet did not give him any real powers, it might become slightly anomalous and there might be just extraordinary expense of time and energy and money without any adequate result’.”

It follows that the Cabinet’s decision is binding on the President. In the present case, unless an exceptional situation has arisen, or the Cabinet decision is irrational, manifestly biased or intentionally calculated to save a constitutional authority, the rule that the tenant of the Raj Bhavan is bound by the Cabinet ruling and the Governor cannot substitute his separate judgment or that of any jurists who may be his favourites to make the Cabinet’s clear resolution impotent, should prevail.

The Central Bureau of Investigation suggested that Pinarayi Vijayan, State secretary of the Communist Party of India (Marxist), is guilty and should be prosecuted. But propriety demands that on matters of law it is not the police’s advice but that of its own highest law officer that the government must follow. The Advocate General has exonerated Mr. Vijayan. Unless there is some manifest bias on his part in Mr. Vijayan’s favour, the Cabinet should adopt his advice. The Opposition may demand that the Advocate General appear before the House in order to seek a clarification. That should be the dignified way for Nehru’s party, instead of burning his effigy or abusing him.

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