Governors sitting on Bills is a dangerous scribbling of the ‘grammar of anarchy’

It does not bode well for federalism and democracy in India that the Supreme Court has to intervene in the routine procedure of governors clearing the Bills passed by state assemblies, writes S.N. Sahu.

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A Supreme Court Bench comprising the Chief Justice of India Dr D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra, in its Order of November 9, 2023, disapproved Punjab Governor Banwarilal Purohit's stand not to give assent to some Bills passed by the state assembly.

Purohit has earlier questioned the validity of the assembly session, a move which the Supreme Court described as "playing with fire".

It also categorically indicted Purohit by observing that "any attempt to cast doubt on the session of the legislature would be fraught with great perils to democracy".

While reiterating the Constituent Assembly's intent embodied in the constitutionally enshrined provisions that "in a parliamentary form of democracy, real power rests with the elected representatives of the people" and the "governor, as an appointee of the President, is the titular head of the state", the Bench made it crystal clear in its Order that "casting doubt on the validity of the session of the House is not a constitutional option open to the governor".

Also read: Supreme Court to hear on Monday Telangana govt's grievance against governor for refusing assent to bills passed by legislative assembly

It then stated, "We are of the view that the governor of Punjab must now proceed to take decision on Bills submitted for assent on the basis that the sitting of the House conducted on June 19–20 2023 was constitutionally valid."

Backdrop of the case

While adjudicating the matter in the State of Punjab versus Principal Secretary to the Governor of Punjab, the Supreme Court Bench took note of the stand of Purohit that the Bills passed during a session of the Punjab assembly were unconstitutional as the session of June 2023, convened by the speaker when the assembly has been adjourned sine die lacked legal and constitutional validity.

The Bench dismissed the governor's completely erroneous and illegal interpretation of the rule concerning the speaker's power to convene the session and observed, "[I]t was within the powers of the speaker to adjourn the budget session convened in March 2023, instead of proroguing it, and calling back the session again in June."

The Bench, flagging the well settled proposition within the framework of the Constitution and parliamentary rules, practice and procedure that the speaker is recognised as the guardian of the privileges of House, made it amply clear that he "was acting in his jurisdiction in adjourning the house sine die".

Governor's action violates the oath taken by him

It is instructive to note that in this Order, the Supreme Court, while indicting the action of the governor, as mentioned above, by describing it as "playing with fire" and "fraught with great perils to democracy", held the speaker's decision for convening the assembly session, when its adjournment was contusing sine die, as constitutionally valid.

Also read: Tamil Nadu government approaches Supreme Court alleging obdurate governorship

It is worthwhile to recall that unlike the speaker, the governor takes oath to preserve, protect and defend the Constitution. So any action of the governor, be it their decision to give assent to the Bills or an assessment concerning the convening of the assembly, must be in conformity with the oath taken to preserve, protect and defend the Constitution.

It is clear that Governor Purohit, by refusing to give assent to the Bills passed by the Punjab assembly, was taking a stand against the very Constitution which he is oath-bound to defend.

Therefore, the Supreme Court's observations that he is playing with fire and his actions constitutes a peril to democracy are applicable to all governors of almost all non-Bharatiya Janata Party (BJP)-ruled states where governors are acting in a manner that paralyses the functioning of the duly elected governments and subverts the Constitution itself.

Previous examples of governors violating the Constitution

Previously, the Punjab governor did not convene the budget session of the state assembly in spite of the Aam Aadmi Party government sending a proposal duly passed by the cabinet for doing so as per the Constitution.

Also read: Supreme Court to hear on Monday Telangana govt's grievance against governor for refusing assent to bills passed by legislative assembly

Only after the state government knocked the doors of the Supreme Court did the governor give his approval.

Earlier in July 2020, the governor of Rajasthan did not convene the session of the state assembly in spite of the cabinet recommendation to that effect and Chief Minister Ashok Gehlot had to sit on dharna for the governor's nod.

For instance, a few months ago, the governor of Tamil Nadu took a strange decision in dismissing a minister of the state. In doing so, he was acting against the very Constitution, constitutional scheme of governance and the intent of the Constituent Assembly that a governor would discharge their functions on the aid and advice of the duly elected council of ministers of the concerned state.

The way in which governors of Kerala and Tamil Nadu are keeping the Bills passed by their respective state assemblies pending for several years without taking a decision on giving assent to them is baffling.

Even the 12 Bills passed by the state assembly two years ago are pending with the governor who, apart from not taking any decision on disposing of them, made an unconstitutional claim that those Bills have lapsed.

The Tamil Nadu government filed a petition in the Supreme Court on the issue with a prayer to declare the "inaction, omission, delay and failure to comply with the constitutional mandate by the Governor of Tamil Nadu" as illegal and arbitrary.

The Bench of the Supreme Court headed by Chief Justice of India, while dealing with the petition, issued notice to the concerned respondents including the Union government and observed that the inexplicable delay on the part of the governor in disposing of those Bills is a matter of "serious concern".

The court, in its short order, flagged the provisions of Article 200 of the Constitution mandating the governor to act "as soon as possible" when Bills, passed by the state legislature are presented to him for his assent.

It is the essential spirit of Article 200 that once a Bill has been passed by a state assembly, a governor shall take a decision to give their assent, return it for reconsideration of the assembly or, if required, send it to the President of India for consideration expeditiously.

Let us recall the sharp observations of Supreme Court on the role played by the then governor of Maharashtra Bhagat Singh Koshyari in calling Uddhav Thackeray government for the floor test based on disputes within the Shiv Sena, which witnessed one faction consisting of some of its members claiming to be the original party.

The Chief Justice of India observed at that time that the governor had acted in a manner which clearly established the point that he had called for a floor test without any material basis except the disputes within the party.

Also read: Governor bound by advice of Council of Ministers on recommendation to summon session of legislative assembly: Supreme Court on Punjab row

Clearly, such observation of the Supreme Court that the governor got actuated by party issues rather than constitutional provisions is a sad reflection on the conduct of the governors in non-BJP ruled states.

Ambedkar's caution to avoid the grammar of anarchy

The fact that several non-BJP ruled state governments are coming to the Supreme Court for making the governors of those states function in accordance with the Constitution shows that those governors, instead of acting in accordance with the Constitution, are waiting for directions to discharge their duties.

They should pay attention to the indicting observations of the Supreme Court on the role played by the Punjab governor and avoid, in the words of the Supreme Court, "playing with fire" and causing "perils to our democracy".

These remarks of the Supreme Court capture the words of Dr B.R. Ambedkar who said in his last speech in the Constituent Assembly that if constitutional methods would not be followed to pursue objectives enshrined in the Constitution, then the grammar of anarchy would prevail.

Those observations of the Supreme Court must be categorical imperatives for all the governors, more so in the non-BJP ruled states, for upholding the Constitution and democracy of our country which very sadly has been described as "partially free" and an "elected autocracy".