Walkouts by Governors test constitutional limits

The walkouts of Governors from the inaugural State Legislative Assembly sessions in Opposition-ruled Karnataka, Tamil Nadu, and Kerala mark a departure from the “limited freewheeling” allowed to them under the Constitution.

Article 176 (1) mandates that Governors, at the commencement of the first session of each year, “shall” address the Legislative Assembly or, in the case of a State having a Legislative Council, both Houses assembled together and inform the Legislature of the causes of its summons.

Reports said Karnataka government may approach the Supreme Court for a judicial declaration on the constitutionality of these gubernatorial walkouts after selective or aborted reading of the special address to the assembled legislators, and indirectly to the people they represent in the Assembly. Leaders from these States argue the Governors have no discretion to skip paragraphs or not read them in toto. The address articulates the policy of the State Cabinet, whose aid and advice the Governors are to abide.

The Constituent Assembly Debates quoted Dr. B.R. Ambedkar on the role of the Governor in the Parliamentary democracy, “The Governor under the Constitution has no functions which he can discharge by himself; no functions at all. While he has no functions, he has certain duties to perform… He is the representative not of a party; he is the representative of the people as a whole of the State.”

Meaningless formality: On Governors, their actions

The Supreme Court in its judgment in the Tamil Nadu Governor case held that the discretionary powers of the Governor cannot have the “effect of negating the powers of a responsible government”. The following Presidential Reference agreed to term the Governor as a “guide, philosopher and a friend of the government and the people in general”.

A seven-judge Bench of the Supreme Court in the 1974 case of Shamsher Singh versus State of Punjab observed that for a centrally appointed constitutional functionary to “take up public stances critical of government policy settled by the Cabinet” amounted to “unconstitutional faux pas and ran counter to Parliamentary system”.

The Supreme Court has consistently held that the discretionary powers of Governors are plainly stated in the Constitution. Governors cannot cross the line. A five-judge Constitution Bench in the 2016 Nabam Rebia case observed that the Constitution allows Governors elbow room in giving assent or withhold or refer a Bill for Presidential assent, the appointment of the Chief Minister, the dismissal of a Government which has lost confidence but refuses to quit since the Chief Minister holds office during the pleasure of the Governor, the dissolution of the House, the Governor’s report under Article 356 (President’s rule), and while exercising gubernatorial responsibility for specific States.

The court said addressing the House under Article 175(1) or making a special address under Article 176(1) were “executive functions” performed by the Governor on the aid and advice of the Council of Ministers.

The Shamsher Singh judgment spelt out clearly that even the “limited freewheeling” allowed to the Governor was “not left to the sweet will of the Governor but remote-controlled by the Union Ministry which is answerable to Parliament for those actions”.

The court reasoned that if discretion was permitted to the Governor in every one of his role, Parliamentary democracy would become a “dope” and the Head of the State would become a “reincarnation of Her Majesty’s Secretary of State for India, untroubled by even the British Parliament — a little taller in power than the American President”.