Justice BV Nagarathna said that "it is quite embarrassing for governors to be told to do or not do a thing".
Published Mar 30, 2024 | 4:51 PM ⚊ Updated Mar 31, 2024 | 7:41 AM
Justice BV Nagarathna (Karnataka judiciary website)
Supreme Court judge Justice BV Nagarathna made a frank assertion on Saturday, 30 March, that governors must be “told” to discharge their duties in accordance with the Constitution and not add to existing litigation in courts.
The judge addressed the introductory session of the Courts and Constitution Conference 2024 in Hyderabad.
The National Academy of Legal Studies and Research (NALSAR) University of Law organised the conclave.
Justice Nagarathna referred to governors as points of concern and said, “The governors must discharge their duties in accordance with the Constitution so that this kind of litigation reduces. It is quite embarrassing for governors to be told to do or not do a thing. Hence, the time has come where they would be now told, I suppose, to discharge their duties in accordance with the Constitution.”
Justice Nagarathna called for Governors to act in accordance with the Constitution rather than being told what to do and what not to do.
The judge perhaps spoke in the context of the “recent trend” involving governors. Recent examples include Tamil Nadu Governor RN Ravi refusing to swear in DMK leader K Ponmudi after the Supreme Court stayed his conviction.
The Supreme Court had to ask if Ravi was defying the court and the Constitution so that he could promptly give the oath to Ponmudi the next day.
Several state governments, especially from South India like Telangana and Kerala, and Punjab, have moved the Supreme Court in recent months against governors who sit on Bills passed by the Assemblies.
Last week, the Kerala government went to the apex court saying President Droupadi Murmu had withheld assent to four Bills passed by the state “while disclosing no reason whatsoever” and that Governor Arif Mohammed Khan had withheld assent to seven Bills — some for as long as two years — before referring them to the President.
Justice Nagarathna did not see these as healthy trends. She said, “The recent trend has been that the state governor is becoming a point of litigation because of either omission in assenting to bills or other actions they would take. This is not a healthy trend under the Constitution to (have to) bring the actions or omissions of the Governor of a state before consideration before constitutional courts.”
She believed that though it is called a ”gubernatorial” post, it is a “serious constitutional post”.
Justice Nagarathna is well-known for her dissent in the demonetisation case. delivered a dissenting verdict in the case challenging the validity of the Union government’s move of 2016 to demonetise ₹500 and ₹1,000 notes.
In her address on Saturday, she revealed how she was “moved by the plight” of the common man post the move to withdraw the currency notes.
The judge told the conference, “I am happy I got to be part of that bench. We all know what happened on 8 November 2016. Nearly 86 per cent of the currency was 500 and 1,000 notes, which I think the Central government lost sight of.
“Imagine a labourer who had to get his notes exchanged for daily essentials. However, 98 per cent of the currency came back, so where are we in black money eradication (goal of demonetisation)?” she asked.
She explained why she dissented, “So I thought (at the time) it (demonetisation) was a good way of making black money white money, of unaccounted cash entering the system. What happened about income tax proceedings thereafter, we do not know. So, this common man’s predicament really stirred me, and I had to dissent.”
On medical termination of pregnancy cases, she said that the Supreme Court’s pendulum went from one end to another on reproductive rights concerns.
“The debate about pro-life and pro-choice arose. I would not like to speak much about it, but I will only say we should not polarise the debate like this. Ultimately it depends on the facts of the case, why has the lady come to court, beyond the time?
“It is a very difficult decision for a woman to terminate a pregnancy. She has to be psychologically ready…it is not a simple abortion right (issue).”
On the matter of “dissent” and jurisprudence, Justice Nagarathna said, “It is rightly said that the dissent is an appeal to the spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting believe the court to have been betrayed”.
Recalling them as famous words written by “Justice HR Khanna in the Indian context of ADM Jabalpur by borrowing the statement of the 11th Chief Justice of the United States, Charles Evans Hughes”, the judge said, “This statement might look to be romantic, but it has withstood the passage of time, especially in India. Edmund Randolph once said a single executive is the foetus of a monarchy.”
She went on to discuss critical cases, such as the path-breaking judgment on Sikkimese women’s exemption from Income Tax, her judgment in the Priyo Indoria case on the scope of transit anticipatory bail, and the Supriyo case on same-sex marriage, and how different judges of the bench interpreted the issue for and against recognition of civil union.
(Inputs from LiveLaw and Bar&Bench)
