The Governor is being accused in the special leave petition of purposely delaying Bills passed by a democratically elected government.
Published Nov 08, 2023 | 2:45 PM ⚊ Updated Nov 08, 2023 | 2:45 PM
Chief Minister Pinarayi Vijayan with Governor Arif Mohammad Khan. (South First)
Two days after Chief Justice DY Chandrachud questioned why Governors kept Bills pending until state governments take them to court, Kerala’s Pinarayi Vijayan Government made an unexpected move on Wednesday, 8 November, by filing a special leave petition (SLP) in the Supreme Court against Governor Arif Mohammad Khan.
The petition, the second since 2 November, seeks suitable instructions requiring Khan to clear Bills passed by the state legislature in a timely manner. It also accuses the Governor of purposely delaying decisions on Bills passed by the state legislature with a clear majority.
The new petition seeks that the Governor be added to the litigation as a party.
Governor Arif Mohammad Khan with Chief Minister Pinarayi Vijayan and former assembly speaker P. Sreeramakrishnan (KB Jayachandran/South First)
The state’s chief secretary and law secretary filed the SLP as an appeal against a 2022 Kerala High Court verdict that refused a petition opposing the Governor’s decision to withhold controversial Bills indefinitely.
According to the SLP, the Governor is doing a grave injustice to the people of the state and members of the legislature by postponing the decision on legislations passed with a majority in the Assembly.
According to the petition, the Governor has not taken a decision on the eight crucial Bills passed by the Assembly, which it contended was illegal.
The petitioners in the first lawsuit, filed on 2 November, were Chief Secretary V Venu and CPI (M) MLA TP Ramakrishnan.
The Governor, the Raj Bhavan’s additional chief secretary, and the Union Government are the opposing parties.
While considering a similar appeal from Punjab, the Supreme Court on Monday had chastised Governors for failing to clear Bills passed by legislatures.
”Governors should refrain from delaying decisions till state governments have petitioned the court, and they should keep in mind that they are not elected by the people,” said a bench led by Chief Justice Chandrachud.
Heading a bench comprising Justice JB Pardiwala and Justice Manoj Misra as well, Chandrachud also remarked: “There has to be a little of soul-searching by all, by the Governors. Governors must act even before the matter comes to the Supreme Court. This has to come to an end when Governors act only when matters reach the Supreme Court.”
The Punjab administration claimed that Governor Banwarilal Purohit was causing administrative paralysis by failing to enforce seven assembly-passed laws.
In the verdict delivered in November 2022, the Kerala High Court had said that it cannot impose a time limit on the Governor’s authority to give assent to Bills presented for his approval.
“Under a parliamentary democracy, when the Hon’ble Governor is left with discretion under Article 200 of the Constitution of India, it may not be appropriate for the courts to issue any direction to the Governor of a state to exercise the discretion within a time frame to be fixed by the court,” said the Kerala High Court order.
A Kerala High Court Division Bench consisting of Chief Justice S Manikumar and Justice Shaji P Chaly issued the order, which is currently under appeal in the Supreme Court.
Kerala Governor Arif Muhammad Khan . (South First)
The state government now claims in both petitions filed with the Supreme Court that the Governor has failed in his obligations.
The latest SLP says that the Governor’s actions “threaten to defeat and subvert the very fundamentals and basic foundations of our Constitution, including the rule of law and democratic good governance. They also threaten to defeat the rights of the people of the state to the welfare measures sought to be put in place through the Bills”.
The state government has sought “a directive to get the pending Bills disposed of within a reasonable time, but further that these Bills have to be dealt with urgently and expeditiously without any avoidable delay”.
According to the state, no action has been taken on as many as eight pieces of legislation passed by the state Assembly and sent to the Governor for his signature under Article 200 of the Constitution.
The state has notified the apex court that three laws have been pending with the Governor for more than two years, while three more have been waiting with his nod for more than a year. Only two are of recent origin.
In relation to each of the Bills that are currently before him, the state has requested that the Governor exercise his powers under Article 200 of the Constitution.
Previously, Chandrachud stated that Governors cannot wait on Bills indefinitely.
“As would now be demonstrated, the Governor’s conduct threatens to defeat and subvert the very fundamentals and basic rights of the people of the state. Apart from the principles of our Constitution, such as the rule of law and democratic good governance, from eroding citizens’ rights to the welfare measures that are sought to be implemented,” asserts the SLP.
Meanwhile, on Tuesday, 7 November, Khan left Kerala’s capital for a week-long visit to Rajasthan, indicating that he would sign the pending Bills only if Chief Minister Vijayan met with him personally and explained their rationale.
“You don’t even have to wait for the Supreme Court verdict,” the Governor told reporters on Tuesday, referring to the 2 November case.
Khan also declined to comment on the Supreme Court’s oral observations in the Punjab case. “That is merely an observation, not a conclusion. So I’m not going to say anything,” he said.
Khan recounted that the chief minister had sent him multiple letters urging him not to resign as chancellor of the state universities after he had disagreements with vice chancellors and administrative bodies dominated by CPI(M) backers.
The Governor questioned why the government had suddenly approved legislation in the Assembly removing him from the office of chancellor. He stated that the chief minister must come to him and explain why he acted contrary to the guarantees offered in the series of letters.
Khan had long maintained that the chief minister was abdicating his constitutional duty to brief him on state concerns.
The Governor had also ignored ministers and senior officials who had arrived to brief him on the chief minister’s behalf.
At a press conference on 27 September, Chief Minister Vijayan likened Khan’s “disobedience of the people’s will” to that of provincial Governors during the colonial era, who had vast discretionary powers.
Kerala governor Arif Mohammad Khan and Chief Minister Pinarayi Vijayan with their families. (Supplied)
He stated that the Cabinet had resolved to sue the governor.
Vijayan alleged Khan was “mysteriously” refusing to sign the eight vital Bills, rendering the government inoperable.
Based on legal advice from jurist Fali S. Nariman, the state government chose to petition the Supreme Court. In the hearing, the state is being represented by KK Venugopal, a senior attorney.
The administration was compelled to begin the legal process now since Khan refused to reach an agreement with the state government and spent most of last month in Delhi or Mumbai.
Some of the Bills were submitted specifically to remove the Governor from his role as chancellor of the state’s multiple universities.
Another Bill requiring the Governor’s approval of the state government’s pick of the chairperson of the State Human Rights Commission is also pending.
The Governor appears to be averse to the newest nomination, former Chief Justice of Kerala Justice (Retd) S Manikumar.
