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Not quite a cipher

Chidambaram, a former Union Minister, recently observed that the Governor is merely the titular head of the relevant province, because…

Not quite a cipher

Constitution of India.

Chidambaram, a former Union Minister, recently observed that the Governor is merely the titular head of the relevant province, because the cabinet is vested with real powers.

Earlier, a Raj Bhavan press statement had expressed the view that as the Governor is the Head of the province, he has the legal authority to obtain any information connected with its affairs and to visit any part thereof without any restriction.

In reaction, the former Minister opined that he was ‘amused’ by such a statement, because, the Governor is the mere ornamental head of his province and, hence, cannot claim such powers.

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It is absolutely true that the Governor is, under Article 156 of our Constitution, the head of the province, but real powers are exercised by his cabinet. Article 163 (1) states that there is a cabinet with the Chief Minister at the head to ‘aid and advise’ the Governor in the exercise of his functions.

The Governor cannot, normally, flout such advice, nor can he refuse to take its aid, because we have accepted the British model of cabinet system.

In such a system, the King/Queen occupies the key position, but, by long-standing conventions since the Glorious Revolution of 1688, the real powers have been passed away to the cabinet. This is why it is said that the King ‘reigns’, but he does not ‘govern’.

But it would be a folly to assume that kingship in Britain has become meaningless or moribund. Truly, the King does not rule but on occasions he can play an assertive role in the affairs of the state.

As Walter Bagehot has observed, the King has three powers – (i) right to encourage, (ii) right to be consulted; and (iii) right to warn. Truly, by dint of such informal rights, he can sometimes come under the limelight.

As a stark reality, history has strongly supported such a view. Lord Palmerston, the former Foreign Minister, congratulated Lewis Napolean in 1851 when the later occupied power in France by a coup d’etat.

As a result, Queen Victoria forced him to resign, because he did not consult her about it. In 1858, she sternly rebuked Lord Palmerston for under-rating the gravity of the Indian Mutiny. But Prime Minister Robert Peel was warmly congratuted in 1846 by the Queen for repealing the unpopular Corn Law.

The Queen also made an amicable settlement of controversies between the two Houses of Parliament in 1867, 1868 and 1884 and thus saved the country from a constitutional deadlock. Queen Victoria and the Prince Consort wisely prevented England from undertaking an unfrofitable war with America in connection with the ‘Trent-affair’.

Moreover, as an adviser the monarch can play a unique role. In fact, as Austin Ogg points out, he can play a ‘greater practical role’ as an adviser. For all these reasons, Sir Ivor Jennings has remarked that the Queen does not steer the ship, ‘but she has to make sure that there is a person at the wheel’.

So, by a reference to the British Constitution it can, by no means, be proved that our Governor is a mere puppet. Moreover, the Governor is Constitutionally more fortunate than the British monarch.

We should remember three points of paramount importance. First, unlike the King the Governor has some discretionary powers. As Article 163 (1) indicates, he can exercise his discretion in an undefined territory without, and even, against the will of his Cabinet.

Significantly, the Constitution has not given a list of such discretionary functions – it has rather delightfully left the matter to the personal choice of the Governor.

As Art. 163 (2) states, such discretion is beyond judicial scrutiny and, hence, the gubernatorial power may often go against the cabinet’s authority. This is why WH Morris-Jones has observed that ‘the cabinet-system is produced in the units with some differences’, because, the President does not possess such undefined power.

According to Dr MV Pylee, the Governor can, thus, claim authority in some crucial matters like (1) nomination of the Chief Minister; (2) dismissal of any Minister; (3) summoning the legislature; (4) dissolution of the Assembly; (5) refusal to give assent to an ordinary Bill; (6) advising the President to impose President’s Rule over the province, and (7) sending a local bill to the President for his consideration etc.

But, DD Basu thinks that a Governor can claim his discretionary authority ‘in certain other matters, according to the circumstances’. If this is so, it can never be claimed that he is a magnificent cipher.

Secondly, under Article 159, before accepting the office, the Governor has to take an oath to ‘preserve, protect and defend the Constitution and the law’ and to ‘devote himself to the service and well-being of the people’.

It makes it crystal clear that he is not always bound to act upon the ministerial advice, because he takes an oath of different nature. If he thinks that an advice is unconstitutional or detrimental to the public interest, he can legally disregard it. This is why, Dr SC Kashyap has observed, ‘there are certain areas where the Governor may have to use his own wisdom.

Thirdly, though some of his powers are normally insignificant, they may occasionally become matters of great import. For example, the leader of the party which has secured absolute majority in the Assembly is sure to be chosen as the Chief Minister.

But the Governor can send for any other person if no party/group commands an overwhelming majority. Similarly, a Chief Minister resigns if and when he is outvoted in the Assembly.

But, in a grave situation, the Governor can dismiss the Chief Minister as Dharma Vira of West Bengal did in 1967. He can legally send a state-Bill to the President, if he thinks that it has defied the Constitutional arrangement.

In 1957, the Governor of Kerala prudently did so in connection with the Kerala Education Bill. And, above all, the Governor can decline to accept the Chief Minister’s advice to dissolve the Assembly if it is seemingly asked for purely political interest.

Moreover, according to Article 167, it is the duty of the Chief Minister to furnish any information as the Governor may call for. Thus, the Governor may, in certain circumstances, play a decisive role and refuse to follow his Chief Minister. For this reason, Dr BC Rout has observed that the office is not at all a superfluous one. In this way, he may sometimes render yeoman service to his people.

Of course, much depends upon political conditions and personal equations. If a mediocre Chief Minister forms a weak coalition-cabinet and the Governor is a wise, prudent and active person, the latter is sure to come out of slumber.

But if there is a Chief Minister like BC Roy or Morarji Desai or C Rajagopalachari with majority-support, the Governor remains idle.

The writer is a Griffith Scholar and Former Reader, New Alipore College

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