Is There Any Constitutional Backing To Tamil Nadu Governor's 'Misadventure'?

Is There Any Constitutional Backing To TN Governor's 'Misadventure'?

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Patrick John Burrows was peeved beyond measure. The man who had caused him so much grief was none other than the last premier of united Bengal, Huseyn Mohammed Suhrawardy, who thereafter went on to become the Prime Minister of Pakistan. 

Governor Burrows was convinced of the complicity of his premier in the Great Calcutta Killings that started on 16 August 1946, which bled the city. Jinnah had announced a nationwide agitation programme to take Direct Action to demand Pakistan. 

Suhrawardy wanted to show his boss that he was an excellent and trustworthy mobiliser. Already he had set the stage by packing the Calcutta Police with Pathans from the North West. 

On that day, post the Maidan rally of the Muslim league where provocative speeches were made, the City was in flames with a systematic targeting of Hindu shops and houses.  It is only when the marwari traders of Central Calcutta organised themselves and funded the Punjabi war veterans, who, on being armed, retaliated, that finally the Premier came running to his Governor for help. Burrows acted swiftly.

He insisted that Suhrawardy issue an immediate message of peace along with the congress leaders and that the army was called dead to restore calm.  Within days, the province was placed under Viceroy‘s rule.

Right from the British times, the Governor has played a central role in the governance of provinces. 

The Evolution of the Governor's Role

However from the Dyarchy under the Government of India Act 1919 to the Constitution of India, 1950 via the 1935 Government of India Act-the journey of the governor's office has been one towards becoming increasingly titular.

The “governor” is a mini, state-level replica of the President who, in turn, is the substitute for the English Sovereign in our borrowed Parliamentary model of democracy. The celebrated scholar Sir Walter Bagehot had cited three limited prerogatives of the sovereign-

• The right to be consulted

• The right to encourage; and

• The right to warn

The Indian Governor pretty much has only these limited rights. Though by and large ceremonial, the Governor performs certain key constitutional duties such as appointing the chief minister, and, on his advice, the council of ministers. 

The Governor can also call upon a Chief Minister to prove his majority in the house and even dismiss a Chief Minister who had lost his majority and dissolve the house. Certain states have enacted legislation which, in addition to these independent powers, vest the Governor with powers such as the right to appoint Vice Chancellors of State University or act as an Appellate or Reviewing Authority.

The 'Pleasure' of The Governor: What it Means

However, by and large, the governor is not his own person and, as the sovereign of England and the President of India, they are dependent on the advice of the elected government in matters of administration of the state.

Every state has formulated rules for transaction of business and while all decisions were taken in the name of the governor and state contracts are executed on his behalf, most often the Governor is not even aware of the actions taken under her name. The same is the case with the “pleasure” of the governor.

While the law mandates that appointees such as Ministers, Government employees and statutory appointees such as  Vice chancellors of state universities, serve as per the “pleasure” of the governor, in this case too, while the “pleasure” is officially the governor’s, the decision to “withdraw” the same always rests with the elected ministerial council headed by the chief minister.

The Governor also has a crucial responsibility, inasmuch as, they are the representative of the central government and act as a bridge between central government and state executive. The Governor also periodically reports on the situation of the governance of the state to the central government. Often it is on the basis of such report that the Central Government concludes whether there is a breakdown of the constitutional machinery in the state.

How the Governor's Position Has Been Misused Previously

The position of the governor sadly has been subject to misuse right from the word go. However, the brazenness of the recent years have paled all past history. 

One would recall the brickbats Governor Koshiari recently received from the top court on his shamelessly partisan role in effecting a regime change in Maharashtra. Delhi’s lieutenant governor was also at the receiving end of the court’s ire for the illegal and partisan appointment of aldermen in Delhi’s newly elected Corporation.

India’s constitutional history has never witnessed state after state seeking judicial intervention simply to get their respective governors to stay the constitutional course. Punjab recently had to seek judicial intervention to get her governor to even summon a budget session. 

That Governor had taken twitter sparring with the CM to heart and had had no remorse to throw the state into the brink of a constitutional and financial crises on account of his bruised ego.  The Telangana government too had to seek judicial intervention to get the governor to act on the bills which were pending for months at the Governor’s desk for assent.

Governor Ravi's Move Backfired

The present governor of Tamil Nadu created a controversy when he refused to read out the speech of the elected government in the Tamil Nadu assembly. Such controversy bolsters neither the image nor the credibility of the central government and particularly the Home Minister who plays a crucial role in the selection and appointment of governors. One would have expected that the concerned authorities would have read him the riot act for such a brazen behaviour.

Evidently either that was wishful thinking or such words of wisdom had little impact upon the gentleman as he struck back within months and how - in a bizarre action, with no parallels in recorded constitutional history, he dismissed a minister from his council without any recommendation, or even consultation with his chief minister.

If such move was calculated to improve the electoral post prospects of the central ruling party it backfired and singed by the potential impact on “Tamil Pride” it was the local unit of the party which ended up actively intervening with Delhi to clean up the mess.

If He Was So Agitated, What Else Could He Have Done?

There is no complex constitutional issue involved in the episode. It is true that the governor is the custodian of the Constitution. However it is equally true that the people of the state democratically elect their government which ultimately is responsible for the actions of governance, including the appointment and removal of ministers.

If Governor Ravi was so agitated, he certainly could have escalated the issue to the Home Ministry, which under the Constitution is empowered to issue directions to the state on matters of governance. He could even have recommended the removal of the entire state goverment by imposition of President’s rule if he was confident that such an action would pass judicial muster.

As a face saver he has been ‘asked’ to place the action on hold and seek the legal opinion of the Advocate General of the State. It is another matter that such course may also not be legally sustainable as the Centre cannot direct the Governor to remove or reinstate ministers.  

If only Ravi Ji had sought out the opinion of a first year law student at University Law College Madras! 

(Sanjoy Ghose is a senior advocate practising in the High Court of Delhi and in the Supreme Court of India. He tweets @advsanjoy.This is an opinion piece and the views expressed above are the author’s own.The Quint neither endorses nor is responsible for them.)