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Arif Mohammad Khan is overreaching in his role as governor

The good governor should have a broken leg and keep at home,” said Miguel de Cervantes. These were the ideals under which the governor had a faint presence, like a full moon on a mid-day. His primary role as a sagacious counsellor was “to be consulted, to warn and to encourage”. He has to be above politics. But India’s experience with governors has been disappointing: The governor’s office signifies an assault on parliamentary democracy at its best and constitutional despotism at its worst. In NCT Delhi v. Union of India (2017), the Supreme Court had stated that the real powers must vest in the elected representatives as we are a “representative democracy”.

Kerala Governor Arif Mohammad Khan is a veteran parliamentarian who has been a minister in several governments. He is an intellectual of high stature and widely respected for his independent and bold views, particularly on Muslim Personal Law. Hence, it was shocking to see his communiqué to the Kerala Chief Minister seeking dismissal of the state’s finance minister for expressing his opinion on the security given to a vice chancelor in UP — which the governor, in his wisdom, equated with the violation of the Constitution and as threatening cordial relations between states. Governor Khan blamed the minister for “violating [his] oath” and in an unprecedented manner, and probably without consulting any constitutional law expert, conveyed to CM Pinarayi Vijayan that the minister had “ceased to enjoy [the Governor’s] pleasure”. The letter threw many constitutional experts into a tizzy as the exercise of discretionary powers by a governor is significantly restricted by provisions of the Constitution and well-established constitutional conventions. It seems the governor has gone against his oath of preserving, protecting and upholding the Constitution.

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The English judge Sir Edward Coke (1552-1634), considered by many to be the greatest jurist of the Elizabethan and Jacobean ages, famously described discretion as a “science of understanding, to discern between falsity and truth, between wrong and right, between shadows and substance… and not to do according to (men’s) wills and private affections…” Discretion, then, is to be exercised with caution and in a reasonable manner. Absolute discretion is constitutional blasphemy. Justice William Douglas of the United States Supreme Court observed that “where discretion is absolute, man has always suffered”, and that “absolute discretion is a ruthless master (which is) more destructive of freedom than any of man’s other inventions” (Dissenting judgment in United States v Wunderlich, 1951).

The governor’s powers are either “discretionary” or “non-discretionary”. Unfortunately, the present invocation that demands the minister’s dismissal falls squarely outside the governor’s docket of discretionary powers. The provisions where the Constitution allows the governor to use his discretionary powers are extremely limited and even in those provisions, the extent of such discretion is further clipped by the constitutional text.

Under Article 163(1), the council of ministers with the chief minister at the head is “to aid and advise the governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion”. What pertains directly to the current matter at hand is Article 164(1), where the discretion of the governor is about the appointment of a minister. This appointment, as Article 164(1) mentions, has to be strictly on the advice of the chief minister. However, it will be a textualist’s paradise if one construes that “the ministers shall hold office during the pleasure of the governor,” quite literally. The governor has no independent power to appoint any minister. He has to go strictly as per the advice of the chief minister. A governor can remove the minister again only on the advice of the chief minister. The concept of “aid and advice” was fundamentally adopted by the Indian Constitution from the constitutional practices of Great Britain. The governor is a de jure or the “titular” head of the government, and not an active participant in the day-to-day functioning of the government. This is buttressed from the rationale adopted by the Constitution drafters, who, unlike in the US, made the position of the governor a nominated (and not an elected) one.

In a landmark decision of the Supreme Court in Nabam Rebia (2016), the Chief Justice-led bench held that “[t]he exercise of executive power by the governor, is by and large notional”. The office of the governor has been, time and again, described as “titular” or his powers being “notional” because the Constitution framers always imagined her discretionary powers to be for a very limited purpose. Hari Vishnu Kamath, a member of the Constituent Assembly, moved an amendment to do away with the discretionary powers under the present-day draft Article 163, as for him, due to the nominated nature of the office of the governor, having “any” discretionary powers would undermine the tenets of a constitutionally elected government. Kamath was joined by another member, Rohini Kumar Chaudhuri, who feared that such powers may be used to “unsettle” democratically elected governments. In NCT Delhi v. Union of India, the five-judge bench headed by the CJI underlined that our adoption of the Westminster form of government means that the real powers vests in the elected government and governor has to be just a nominal head. He reigns but does not rule.

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For the members of the Constituent Assembly, “constitutional democracy” was the core value of the new republic. Ambedkar was of the opinion that Clause (1) of Article 163 “is a very limited clause” as the clause was not a general one that gave the governor power to “disregard the advice of his ministers in any matter in which he finds he ought to disregard”. As a non-negotiable axiom for governing the nation’s fate, the Supreme Court in Kesavananda Bharati (1973) held that the “republican and democratic form of government” is one of the important basic features of the Constitution.

Therefore, the role and duties of the governor are only to the extent where he is advised by the council of ministers so that the fine democratic values are maintained. The governor may exercise his discretionary powers only in certain exceptional situations such as when he is to invite the single-largest party or the single-largest pre/post-poll alliance to stake its claim to form the government immediately after the elections, or while he recommends to the President under Article 356 imposition of President’s rule. Even this power under Article 356 is to be used sparingly.

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Governor Khan’s letter, probably written in haste, hints at a dangerous trend where governors may become entrenched sparring political actors in the politics of the state. Their duty is to ensure that the popular government elected by the people who are the real sovereign of our country complete their terms in office and in cases where it appears that the incumbent government has lost the popular mandate, governors are entitled to withdraw their pleasure and proceed as per constitutional conventions.

In Shamsher Singh v State of Punjab (1974), the apex court had said we are a parliamentary democracy and governors should ideally behave just like the British monarch.

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Mustafa is a constitutional law expert and Sangal is a lawyer at the Supreme Court. Views are personal

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