The Constitution gives no discretion to the governors in the matter of convening the session of the Assembly
Historically speaking, the governor’s office has been there in India since antiquity. Though loyalists were always appointed as governors, still most governors in ancient and medieval times, in fact, revolted against the Centre and declared themselves as independent. British governors were the most loyal servants of the imperial government and governors of free India preferred to follow the path of their immediate predecessors. Arif Mohammad Khan, just like other governors of the Indian republic, seems to care more for the interests of central government than the Constitution, though under Article 159 of the Constitution he has taken the oath to preserve, protect and defend it. Be refusing to convene the Kerala Assembly session, he has yet again crossed the lakshmanrekha. Subsequently, like a true statesman, in an extremely polite letter, he has clarified that since there is nothing like an emergency session, he had to decline the request. He has also emphasized the importance of 15 days’ notice. Such technicalities do not deserve much importance as the governor’s acting on the advice of government is a constitutional mandate. Last month itself, he himself assented to a controversial ordinance without even exercising his right to seek reconsideration. Clearly, he was more concerned about the possibility of the Assembly passing a resolution against central farm laws rather than people’s rights.
The Constitution gives no discretion to the governors in the matter of convening the session of the Assembly. Parliamentary democracy being the basic structure of our Constitution, this is the prerogative of the Cabinet though Article 174 does say that the governor from time to time summon the Assembly to meet at such time and place ‘he thinks fit’. A few months back, Rajasthan governor Kalraj Mishra, too, behaved in a similar way and delayed the convening of the Assembly session as was recommended by the Ashok Gehlot government. Here, the governor doubted the ‘purpose’ of convening the session. The governor was strangely coming in the way of the chief minister proving his majority.
Even in the context of the state of Kerala’s filing of petition challenging the constitutionality of Citizenship Amendment Act, 2019, Khan had asserted that he is not a rubber stamp and was unhappy that he was not kept in loop before filing the case. A five-judge bench of the Supreme Court in Nabam Rebia (2016) had explicitly observed that the governor of Arunacha Pradesh, Rajkhowa, who had advanced the session of Assembly without the advice of chief minister, had exceeded his jurisdiction as he had no discretion in convening the Assembly session.
Article 163(1) does permit governor to act ‘in discretion’ wherever constitution requires him to act in his discretion. According to Edward Cook, “discretion” is a science or understanding to discern between falsity and truth, between right and wrong, and not to do according to will and private affection. Justice Douglas in United States v. Wenderlick (1951) said that absolute discretion is a ruthless master. It is in fact constitutional blasphemy and is more destructive for freedom than any of man’s inventions.
The Kerala governor is certainly aware that there are established rules for the exercise of discretion. First, discretion should always be exercised with caution and in a reasonable manner. Second, discretion cannot be exercised under dictation. Thus, in convening Assembly sessions, the Kerala governor should have ignored it if at all any directive came from Delhi. The Kerala governor has not acted as an independent and impartial constitutional functionary. Third, discretion is to be exercised after proper application of mind. It cannot be exercised for an improper purpose or with bad faith or by taking into account irrelevant considerations. Fourth, discretion cannot be exercised in an arbitrary or whimsical manner. Any action of governor is arbitrary if he has acted on the basis of prejudice or preference rather than on reason or fact. As per the constitution bench judgment in Nabam Rebia (2016), the expression “as he thinks fit” in Article 174(1) gives no “discretion” to the governor in convening the Assembly session.
The moot question is why our governors behave like this. The worst thing which happened to this office is that the governor is the only constitutional authority who has no security of tenure like the President, judges, CAG, chairman, UPSC, Election Commissioner, CIC, etc. He is worse than an IAS officer who under Article 311 is entitled to a proper inquiry and cannot be terminated without a definite finding of ‘misconduct’. But the governor remains in office only so long he enjoys the “pleasure of the President” which, in reality, means the pleasure of the political dispensation in Delhi and he can be removed on the whims and fancies of Prime Minister.
This is in spite of the Supreme Court’s decision in Hargovind Pant v. Raghukul Tilak(1979) where the court held that governor is not an “employee of the central government”. He is neither under its control nor accountable to it and is “an independent constitutional office”. Mr Khan is clearly aware that the Kerala Assembly resolution against the controversial farm laws would be far more serious than the resolution against CAA as unlike citizenship on which the Parliament has exclusive jurisdiction, agricultural market is state subject in respect of which Parliament lacks legislative competence. One hopes better sense will prevail and the governor would accept a fresh request for the session.
The writer is a constitutional law expert and currently vice-chancellor of NALSAR University of Law, Hyderabad