Narendra Modi has a first-hand understanding of the Governor-government controversy, having experienced it when he was Gujarat CM.
Avoidable actions of some state Governors appear to be testing the patience of the Supreme Court. At least three States — Kerala, Tamil Nadu, and Punjab — have approached it about their Governors sitting on their bills for months, answering the government’s requests with silence.
Some Governors, like in the case of Telangana, gave their consent to Bills after the frustrated state government finally moved the apex court this April.
Arguing for the Telangana government, Senior Advocate Dushyant Dave told the court, “Your Lordships must intervene and decide once and for all… This is seen in ‘Opposition States’. Legislatures are at the mercy of the Governors…”
The Bench comprising CJI DY Chandrachud and Justice PS Narasimha said Governors must return the Bills “as soon as possible” if they disagree with them.
But the Governor is a Constitutional authority representing the President, and the Governor has complete immunity from court proceedings for any act done in the exercise of their powers under Article 361.
So, the bench’s remarks were careful notings. One, that “the phrase ‘as soon as possible’ has a significant content and must be borne in mind by constitutional authorities”.
Two, that “we have not made this observation for this Governor…We said this must be borne into mind”.
West Bengal and Chattisgarh face similar situations. Other states have since approached the Supreme Court about their indecisive Governors.
On 31 October, the Tamil Nadu government approached the apex court with a petition that said, “The Governor’s inactions have caused a constitutional deadlock.”
On 2 November, it was Kerala’s turn to raise a similar demand. It said the Governor “subverted the Constitution and acted in a manifestly arbitrary manner”.
The Punjab government also came to the Supreme Court with the same plea. And, as in Telangana’s case, the Governor passed the bills swiftly thereafter.
The Supreme Court took the opportunity to make its views known more clearly than in April while hearing the Punjab government case on Monday, 6 November.
It said: “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…A little bit of soul searching is needed by governors, and they must know that they are not elected representatives of the people.”
The court said it. This has to stop. There must be a time frame for the Governors to act on the Bills sent to them. Act within a reasonably quick time, and give reasons for the actions.
The question is, who will bell the cat?
The Supreme Court can only suggest, imply or obliquely recommend a course of action. It did so in April and November.
The Union government, which appoints the Governors, can amend the concerned legislation to include the riders related to a time frame and explain the reasons. Or the advice of the President can be sought, in which case the President will refer the matter to the Union Cabinet.
We thus face a unique situation where the Supreme Court can do little; Governors fail to realise the Constitution does not give them the option of not acting on the Bills; and the founding fathers of the Constitution did not visualise the situation that Governors would sit on pending Bills.
However, one person who is deeply aware of the matter is Prime Minister Narendra Modi.
He faced a similar situation when he was chief minister of Gujarat. Then Governor Kamla Beniwal, an appointee of the Congress-led United Progressive Alliance government. had several confrontations with the state government, including on the choice of Lokayukta and a crucial Bill sent to her.
Interestingly, Beniwal was shifted out of Gujarat to Mizoram soon after Modi became prime minister in 2014. A month later, she was sacked from the governorship.
The ball, understandably, lies in the Union government’s court.