The Kerala governor has sent a bunch of Bills for the President’s assent. The state government has approached the Supreme Court against this decision. This piece examines the merits of the claims and counter-claims.
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ON November 10, 2023, the Supreme Court in the State of Punjab versus Principal Secretary to the Governor of Punjab and Another stated that governors cannot veto the functioning of the legislature or keep Bills placed before them for assent pending indefinitely.
In its judgment, a Bench headed by the Chief Justice of India (CJI) D.Y. Chandrachud said that the expression “as soon as possible” in Article 200 of the Constitution of India conveys a “constitutional imperative of expedition”.
On November 1, 2023, the Kerala government had also filed a writ petition in the Supreme Court challenging the inaction of the governor of Kerala, Arif Mohammad Khan, on various Bills pending before him for assent.
The petition had contended that the governor’s actions were threatening the “basic foundations of our Constitution”. The state government had stated that the governor had kept eight Bills pending.
These Bills had been passed by the state legislature and had been presented to the governor for his assent under Article 200. The petition also accused the governor of “subverting” the Constitution and acting in an “arbitrary” manner by sitting on the Bills for an “indefinite period”.
On November 1, 2023, the Kerala government had also filed a writ petition in the Supreme Court challenging the inaction of the governor of Kerala, Arif Mohammad Khan, on various Bills pending before him for assent.
Later, on November 8, the state government appealed against the Kerala High Court’s ruling that declined to fix a timeline for the governor to clear Bills.
The state government sought a declaration from the Supreme Court on “the inaction on the part of the governor of the state regarding as many as eight Bills passed by the state legislature and presented to the governor for his assent under Article 200 of the Constitution.”
On November 28, just a day before the Supreme Court was set to take up the Kerala government’s petition, Governor Khan referred seven of the eight Bills to the President.
The seven Bills referred to the President are the Kerala Lok Ayukta (Amendment Bill); two University Law Amendments Bill, 2022; two Bills meant to amend the existing University Act, a Bill regarding the expansion of the University Search Committee and the Kerala Cooperative Societies (Amendment) Bill.
Also read: After Delhi, Punjab and Tamil Nadu, Kerala approaches SC against governor’s recalcitrance
He cleared the Public Health Bill, 2021, which proposes that public health protection should be beyond mere diagnosis and curative services.
Yet, on November 29, 2023, the Supreme Court criticised the conduct of Kerala Governor Arif Mohammed Khan in sitting over the Bills passed by the legislature. The CJI D.Y. Chandrachud said, “The power of the governor cannot be utilised to pause the law-making exercise of the legislature.”
Article 200: a textual reading
Based on a mere textual reading of the Article, there are only three ways the governor may act:
- He assents to the Bill
- He withholds assent therefrom
- He reserves the Bill for the consideration of the President.
Further reading of the proviso gives us the understanding that the governor may reserve only such Bills that derogate the powers of the high court in such a way as to endanger the constitutionally designed position of that court.
The Article does not mention any other category of Bills that the governor may reserve for the President.
However, in B.K. Pavitra versus Union of India, the Supreme Court did expand the powers of the governor under the second proviso to Article 200 and said: “Aside from Bills that are covered by the second proviso, where the Governor is obliged to reserve the Bill for the consideration of the President, the substantive part of Article 200 does not indicate specifically, the circumstances in which the governor may reserve a Bill for the consideration of the President.”
Further on, the judgment quotes Justice J.S. Khehar (who was the Chief Justice at that time) in Nabam Rebia, “The governor is expected to function in accordance with the provisions of the Constitution (and the history behind the enactment of its provisions), the law and the rules regulating his functions. The framers carefully eschewed defining the circumstances in which the governor may reserve a Bill for the consideration of the President. By its very nature the conferment of the power cannot be confined to specific categories.”
Continuing to quote from Nabam Rebia, Justice J.S. Khehar writes, “The entrustment of a constitutional discretion to the governor is premised on the trust that the exercise of authority would be governed by constitutional statesmanship.
Also read: Governor has no power to halt law-making by legislature, holds SC in Kerala matter
“The act of reserving a Bill for the assent of the President must be undertaken upon careful reflection, upon a doubt being entertained by the governor about the constitutional legitimacy of the Bill which has been passed.”
On November 8, the state government appealed against the Kerala High Court’s ruling that declined to fix a timeline for the governor to clear Bills.
We have had the opportunity to look at the Bills passed by the legislative assembly of Kerala and reserved by the governor for presidential assent. Let us look at the statement of ‘Objects and Reasons’ of each Bill individually and see if the action of the governor to reserve the Bills for the President passes muster as per B.K. Pavitra.
Kerala Lok Ayukta Act
The Kerala Lok Ayukta Act, 1999 provides for the appointment and functions of certain authorities for making inquiries into any action relatable to matters specified in List II or List III of the Seventh Schedule to the Constitution of India taken by or on behalf of the government of Kerala or certain public authorities in Kerala in certain cases and for matters connected therewith.
Section 3 of the said Act provides for matters relating to the appointment of Lok Ayukta and upa-Lok Ayuktas.
Under sub-section (2) of the said Section, to be appointed as Lok Ayukta, a person should have held the office of a judge of the Supreme Court or that of the Chief Justice of a High Court.
Now the government intends to consider a retired judge of the high court also to the post of Lok Ayukta by amending sub-section (2).
Sub-section (3) of the said Section provides that to be appointed an upa-Lok Ayukta, a person shall hold or have held the office of a judge of a high court. It has been decided to omit the existing provision regarding the appointment of a sitting judge of a high court as upa-Lok Ayukta by amending the said sub-section (3).
Under Section 5 of the said Act, the term of office of the Lok Ayukta and the upa-Lok Ayuktas shall be five years from the date on which they assume office.
Now, it has been decided to fix seventy years as the maximum age limit for holding the office of the Lok Ayukta and the upa-Lok Ayukta by amending Section 5 of the said Act. Further, it has been decided to insert a provision regarding the term of office of the present Lok Ayukta and upa-Lok Ayuktas.
As there was no provision in the said Act for the arrangement to be made in case of the occurrence of any vacancy in the office of the Lok Ayukta, it has been decided to insert new provisions, viz., sub-Sections 5(A) and 5(B) to Section 7 of the said Act.
Sub-section (1) of Section 14 of the said Act empowers the competent authority to accept the declaration under sub-section (3) of Section 12 of the said Act. Now the government has decided to empower the competent authority to reject the declaration as well by making amendments to Sections 14 and 15.
On November 28, just a day before the Supreme Court was set to take up the Kerala government’s petition, Governor Khan referred seven of the eight Bills to the President.
As the legislative assembly of Kerala was not in session and these proposals had to be given effect to immediately, the Kerala Lok Ayukta (Amendment) Ordinance, 2022 was promulgated by the governor on February 7, 2022.
Also read: Tamil Nadu government approaches Supreme Court alleging obdurate governorship
A Bill to replace the said Ordinance by an Act of the state legislature could not be introduced during the legislative session.
In order to keep alive the provisions of the said Ordinance, the Kerala Lok Ayukta (Amendment) Ordinance, 2022 was promulgated by the governor on March 31, 2022.
A Bill to replace the said Ordinance by an Act of the legislature could not be introduced in the next session of the assembly which ended on July 21, 2022.
As per sub-clause (a) of clause (2) of Article 213 of the Constitution of India, an Ordinance promulgated by the governor shall cease to operate at the expiration of six weeks from the reassembly of the legislature. Accordingly, the Kerala Lok Ayukta (Amendment) Ordinance, 2022 ceased to operate on August 8, 2022.
Now the government has decided to enact the Kerala Lok Ayukta (Amendment) Bill, 2022 by incorporating a clause to validate actions taken during the period from the cesser of the said Ordinance to the date of publication of this Act.
Before it was introduced, the Bill was issued as an Ordinance and the governor had acceded to it. He had no objections then. So it is surprising that he should have objections to the Bill later.
In any case, the Kerala Act does not deviate from the Lokpal and Lokayukta Act, 2013.
The Kerala Cooperative Societies Act
The Kerala Cooperative Societies Act was enacted in 1969. Thereafter, many amendments were made to the Act for the development and sustainability of the cooperative sector.
The cooperative sector in Kerala has achieved tremendous progress. Deposits in cooperative societies have increased up to ₹2 lakh crore. The number of societies and their activities has increased manifold. At the same time, sporadic incidents of undesirable practices are also noticed in the sector.
Now the government considers that detailed revamping of the cooperative sector is inevitable to meet challenges and to guide institutions in a new direction. A prudent scheme for the effective management of deposits in the societies and a transparent reporting system are the need of the hour.
Governor Khan cleared the Public Health Bill, 2021, which proposes that public health protection should be beyond mere diagnosis and curative services.
To achieve this, the government made certain amendments in the Kerala Cooperative Societies Act, of 1969.
On a reading of both Part IXB of the Constitution of India and the amendments to the Kerala Cooperative Act, there does not seem to be any violation of the Constitution. The amendments comply with the provisions of this part. In fact, the amendment seeks to plug the loopholes in the unamended Act.
The University Laws (Amendment)
The Union government constituted a commission on Union–state relations under the chairmanship of Justice Madan Mohan Punchhi on April 27, 2007.
The commission, while examining the position of the governor in the administration of education in a state and the governor’s function as the chancellor of universities, stated that the governor should not be burdened with positions and powers which are not envisaged by the Constitution and which may lead the office to controversies or public criticism.
The commission also observed that the governor should not be assigned functions casually under any statute. The Kerala State Higher Education Council also recommended the appointment of well-known academicians as chancellors of universities in the state.
Under these circumstances, the government decided to appoint eminent and reputed academicians as chancellors of universities in the state. The government also decided to bring similar provisions in all university laws regarding the arrangements to be made in the event of a temporary vacancy in the office of the vice-chancellor.
The government decided to make amendments to the university laws in the State for the said purpose.
Unlike the Central Universities Act, 2009, where the President by statute is required to be the visitor or chancellor, no statute in Kerala designates the governor as the chancellor of universities.
The governor is appointed chancellor by convention. The state legislature can appoint any qualified person as the chancellor.
The Punchhi Commission on Union–state relations recommended not to entrust the governor with powers that are not envisaged in the Constitution and which may lead to controversies.
The governor may reserve only such Bills that derogate the powers of the high court in such a way as to endanger the constitutionally designed position of that court.
The Supreme Court in the A.P.J. Abdul Kalam Technological University case said the provisions of the University Act to the extent it conflicts with the University Grants Commission (UGC) Regulations shall not be binding.
It was further held that in the case of conflict between state and Union legislation, the UGC Regulations shall prevail by applying the principle of repugnancy under Article 254 of the Constitution as the subject ‘education’ is contained in the Concurrent List of Schedule VII of the Constitution.
For law universities, the Chief Justice of India or his nominee, a senior judge of the Supreme Court, shall be the visitor.
Conclusions
After having studied the Supreme Court’s decisions, one may conclude that the governor has wrongfully reserved the amendments for the President’s assent. There is no violation of the Constitution of India, including any of the entries in Lists II and III of the Seventh Schedule of the Constitution of India.
It would be constitutionally proper for the President to return the Bills as passed to the governor asking him to notify the same.
It would be constitutionally proper for the President to return the Bills as passed to the governor asking him to notify the same.
Finally, the Supreme Court’s observation on Article 200 in B.K. Pavitra needs to be re-visited sooner rather than later.
