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GREY AREA OF THE CONSTITUTION AND ITS OVERSHADOW

Author: Lavanya KS, V year of B.A.,LL.B. from Chennai Dr ambedkar government law college pudupakkam

Co-author: Lokesh R, V year of B.A.,LL.B. from Chennai Dr ambedkar government law college pudupakkam


ABSTRACT

A few articles in the Constitution have ambiguous provisions; they are ARTICLE 200 which is Assent to Bills. When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent or that he reserves the Bill for the consideration of the President. ARTICLE 201 says about Bills reserved for consideration. When a Bill is reserved by a Governor for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent. Provided that, where the Bill is not a Money Bill, the President may direct the Governor to return the Bill to the House or, as the case may be, the Houses of the Legislature of the State together with such a message as is mentioned in the first proviso to article 200 and, when a Bill is so returned, the House or Houses shall reconsider it accordingly within six months from the date of receipt of such message and, if it is again passed by the House or Houses with or without amendment, it shall be presented again to the President for his consideration.



There is a loophole in these two provisions that were misused by the political parties without addressing the core issues.The Governor of the state shall resist the bill if he feels that there are certain provisions in the particular legislation which may not be exemplary for that state. The gray area was 'WITH HOLD THE ASSENT'. When the state legislature gives the draft bill to the governor. There is no time limit for withholding the bill. This article shows about the governor's discretionary power which is one of the loopholes in the constitution.


KEYWORDS:- Role of Governor, state legislature, legislative assembly, constitution, loopholes, assent of bills, central government's agent, federalism.


INTRODUCTION

The work of the governor in the constitution parameters and not as an agent of the Union. In the states of West Bengal, Maharashtra and Tamilnadu all these states are governed by parties of the opposition. The governor of these states acts as an agent and unnecessarily targets elected state governments. Thereby undermining the key constitution of federalism. Maharashtra governor Bhagat Singh Kocheri stalled the election of the speaker and tried to impose legislative rules. The state legislative assembly cannot decide its own rules which are found unacceptable for ruling coercive government. Tamil Nadu governor R.N. Ravi also withheld his assent for the bills. As per the constitution he wants to give assent to the bill or give the bill to the president for consideration. But by indefinitely delaying his decision seriously centre and state relations and undermine key constitutional principles. This debate around the office of the governor is not new. This is an issue that has prevailed for several decades. Quite often the governor functions as an agent of the centre, which is a colonial legacy, tends to interfere with the function of state government and state legislative assembly especially when states are ruled by opposition parties. This issue is not limited to the current ruling party of the centre. But it has been seen even in previous central governments.


DUAL ROLE BY THE GOVERNOR

The governor is mandated to play a dual role by a constitution. One hand they function as a nominal constitution head action bound by aid and advice of the council of ministers headed by the chief minister. On the other hand, they serve as an agent of the center which legacy inherited from the colonial era. The British appoint a governor as agent if the centre which exercises complete authority whenever needed could interfere in the political and administrative affairs of provinces. This colonial legacy continued after independence day. This allows the governor to play a dual role.


Under normal circumstances, the governor is just a nominal constitutional head but few extraordinary circumstances he gains discretionary powers which allows him to function as the agent of the centre. Essentially, political and constitutional conditions in the state directly influence the governor and chief minister. While the governor functions as a nominal ceremonial member of the state he/she will be the eyes and ears of the centre on the other hand as the appointment of governor, removal, transfers completely control by centre. In this regard he doesn't enjoy autonomy; he should be subservient to the will of the centre.


This is often misguided vh the ruling party of the center to meddle with political affairs of the state governments especially those states which are offered by the opposite party. This is an unfortunate trend. From 1950 till date centre always interfered in state affairs and misuse of governor by misusing his discretionary power. Article 163 of the Constitution states that the governor function is based on council of ministers aid and advice and it acts as a source of discretionary power of the governor. The union government nominates the governor, allowing them to meddle in the state affairs in combination with article 163.


ANALYZING THE ROLE AND FUNCTION OF THE GOVERNOR AS PER THE CONSTITUTION

He is a constitutional head of the state or nominal head. All executive actions in the state are taken in his name. As per constitution, the governor appoints the chief minister. Later on advice of the chief minister, he appointed a council of ministers. The general condition was he is responsible for smooth functioning of state administration and is also governor duty to ensure that state administration is carried out in accordance with provision of the constitution. If he determines that the constitutional machinery of the state has broken down or if administration of state cannot be carried out in accordance with the provisions of the constitution. Then he recommended to the union government (President) to proclaim a state emergency in the state provision of Article 356. In these circumstances, the governor can send a report to the president advising him to impose the president's rule in the state. Later, if the president satisfies that necessary conditions had arrived under article 356 then the president will act according to aid and advice of the union council of Ministers (central government) and proclaim the imposition of the president's rule. Once the president's rule is proclaimed, the state administration comes under the control of the center and the governor starts functioning as the center's agent. In these circumstances, the council of ministers is dismissed and the assembly is dissolved or even suspended. When the chief minister of the state enjoys the confidence of the majority in the state legislature, then governor discretion is largely curbed and restricted. When the state government had full majority, the chief minister was the real head of state of administration.


ROLE OF GOVERNOR AS IT ENVISAGED BY OUR CONSTITUTIONAL MAKERS

Taking clues from constituent assembly debates. These debates clearly show that constituent assembly in favor of establishing a responsible government at the states as much as of the centre.


The States had been given their own jurisdiction where the centre could not interfere. This forms the centre-state relation and principle of federalism. That constitutional makers are very clear about interference of the centre in the matters of state are very limited.


Dr BR AMBEDKAR says I have no doubt in my mind that discretionary power is in no reuse a negation of responsible governments. The constitution says that states were indeed sovereign in their own domain and jurisdiction, discretion power is beyond specific situation and granted under the article 163 is limited. It doesn't enable a governor to constantly interfere in the functioning of state government and state legislature. On the question of selecting the chief minister with regard to defection. In a situation where there is a hung legislature and interfering in matters of state administration. The governor should not exercise discretion just to fulfill the wishes of the centre because that is not what constitutional makers envisaged when the office of governor was created.


WHETHER THE GOVERNOR IS AN AGENT OF THE CENTRE?

Such conduct by the state governors was noted in the past as well that led to unwanted interferences of the centre in affairs of elected state governments and state of the legislative assembly. These states are often ruled by political parties which are in opposition to the ruling party at the centre. This gives to portray the negative image of the state governors are being misused by the centre as an agent to deliberately interfere in the function of the state government and legislative assembly in order to undermine elected governments which intents to undermines democratic processes and comprises one of the basic structure of the constitution ( Principle of federalism).


At the state level he acts as nominal head as executive just like president at Union. The real power of the executive is within the council of ministers which is headed by the state Chief Minister. It is collectively accountable to the lower house of the state legislature and not directly to the governor. The constitution also mandates it according to the aid and advice of the council of ministers headed by the chief minister. This established role and position as governor is largely ceremonial and nominal head for fulfilling few constitutional requirements. The constitution does issue discretionary power to the governor under extraordinary situations quite often this discretionary power is misused by the governor.


MISUSING THE CONSTITUTIONAL POWER

The constitutional experts pointed out, governor tend to misuse their powers especially in three circumstances.

  1. When to recommend the president for proclaiming a state emergency or president rule.

  2. While appointing chief minister in case of hung state legislature when there is no clear-cut majority of any party.

  3. Deciding the fate of the chief minister and state government when there are intra-party defections.

In these extraordinary situations, governors enjoy few discretionary powers and how they exercise these powers and the manner in which they enjoy these powers often lead to controversy.


Nature of Intervention of the governor in state affairs is not limited

  • In selection of the chief minister.

  • Imposition of president rule under article 356 of the Constitution.

  • Determining the timing for proving legislative majority they often demand excessive information from the state about today 's administration and even pass public comments on the issue which eventually ends up undermining the authority of government and legislature.

These powers are misused by certain bills enacted by state legislature, if centre feels this bill is against his political interest, it would use the office of the governor to indefinitely delay the governor's assent or to reserve the bill as provisions of the constitution for the president's consideration thereby undermining powers of the elected state legislature. In several incidents the governor commented adversely on specific policies of the state governments.


Governor acting as agent of the centre and its effect

This constant interference of the centre in the affairs of state ended up in encroaching upon the were elected legislatures as well as powers of elected state governments. The constitutional experts argued this amounts to abusing the governor's authority and ends up damaging India's federal structure and the democratic process.


COMMITTEES REVIEWS

Same positions were taken by various committees on center states relations over decades committed or commissions were set up to review centre state relations and they all examined the role and function of the governor.

  • The Administrative Reforms Commission of 1968

  • The Rajamanar commission of 1969

  • Commission of governors of 1971

  • The Sarkaria Commission of 1988

  • Punchhi Commission of 2007

  • Second Administrative Reform Commission

They all looked up the role of governor and pointed out' governor shouldn't function merely as an agent of the center'. All these committee governor roles are quite limited and constitution granted discretionary were only to deal with an exceptional situation. Even this discretionary power should be exercised with vesd interest of the state. It cannot be exercised to fulfill the wishes of the centre. If the governor and center do this it marks abuse and misuse of the governor's office which undermines our constitutional provision including the principle of basic structure like federalism.


SUPREME COURT LEADING CASES

It is always a matter of debate ruled by political parties against ones that are ruled at the central government level. When a governor gets a bill from the state legislature he has few options: they assent to the bill, withhold the bill and send the bill for reference to the president. The state legislature may or may not make those changes but if the state legislature passes a bill for a second time. It is binding on the governor to give assent. In the case of Shamsher Singh V State of Punjab(1974), The Supreme Court held that the executives exercise their formal Constitution powers only upon aid and advice of their ministers. The same was clarified by Ambedkar in the constituent assembly. The governor under the constitution had no functions which he can discharge by himself. No functions at all means No discretionary power at all. Sankaria and Punchhi commission also said whatever council of ministers said the governor should accept it. The developed nation suggested the executive should sign at the last instance and not have the power to overrule the will of the legislature because legislative is the true representation of the people in the country.


In the United Kingdom it is unconstitutional for the monarch to refuse and give assent to a bill that has been passed by the parliament. In Australia also a bill passed by the parliament cannot be refused at the last stage. Since our constitution horrors a lot of provisions from both these nations. The state governor seems to be acting upon the advice given by the Union government rather than given by his own council of ministers at state.


The Tamil Nadu State Assembly passed a resolution in 2018 releasing seven prisoners convicted in the Rajiv Gandhi Assassination case. This resolution was sent to the governor who did not take action for more than two years. In January 2021, the Supreme Court heard a plea which was unhappy with the delay. In February the Governor didn't take a call and just sent this resolution to the president of India.


There are commissions set up to how the office of the governor should work. The Supreme court also gave multiple judgments on appointment and removal of the governor. It is controversial because it is in the hands of the central government. The Punchhi commission in 2010 recommended provision for impeachment of the state legislature especially when the governor doesn't work in the interest of the state.


The Supreme Court in 2016 of the Nabam Rebia judgment said to exercise governors discretion under article 163 , it is limited and his choice of action should not be arbitrary. It has to be inline with the council if ministers only. Naval Rebia is the speaker of the Arunachal Pradesh State Legislative Assembly. Now he is a member of Rajya Sabha from Arunachal Pradesh. Even the Supreme Court similarly stands in this regard. In the landmark SR Bommai case,1994 the case put an end to the arbitrary dismissal of state governments by a hostile central government. It is against the misuse of the office of governor in targeting the state government in an unconstitutional manner. But despite all these recommendations and observations not much has changed with regard to the function of the governor. In several instances, governors of different states continue to act as agents of the centre. This directly affects the federal autonomy which is granted to states under the constitution and also severely compromises key constitutional principles.


THE BIGGEST EXAMPLE OF THE CONTROVERSY OF THEIR FUNCTIONS

NEET CONTROVERSY

Medical courses held at all India-level undergraduate medical and dental courses. NEET-UG entrance exam introduced in 2013 to replace all India pre medical test, other tests conducted by states or medical college students find challenging to appear in multiple entrance exams. So the government of India along with the medical council of India introduced a unified entrance exam. In 2013-2018 this exam was conducted by CBSE. Now it's conducted by the National Test Agency. In 2013 the supreme court declared it unconstitutional and illegal before it was restored in 2016 by the Constitutional bench of supreme court. NEET UG became the sole medical entrance test and established a national test agency to conduct this exam. Last few years it's faced more opposition. Mainly the state of Tamilnadu.

It adversely affects candidates from rural areas and weaker sections.The Tamilnadu government also argued it goes against cooperative federalism. Since they try to bring new laws dispensed with NEET. Once made in 2017 adopted a bill against NEET. But this did not get assent from the governor. Then the governor referred the bill to the president and withheld the assent. 2021 brought back a similar bill, Tamilnadu Undergraduate Medical Courses Bill. This bill was refused by the governor and sent back to the legislative assembly for consideration. Governor refusal is seen by the government as an assault on the principle of federalism. It led to allegations of the governor acting as agent of the centre.

As per constitution, the governor set back a bill to reconsider the legislative assembly. It has three options.

  • It can reconsider the bill and possibly seek to amend it.

  • It can drop the bill.

  • It can choose to readopt the bill.

If the legislative assembly adopts the same bill, the governor has no choice but to give his assent to the bill under Article 200 of the constitution. If he chooses an indefinite delay he can refer back the bill to the president.


Original intentions of the constitutional makers in article 200

There shouldn't be any discretionary power when given as assent except state laws that try to undermine the position of the High court. Of late it has become the constitutional practice of the governor to exercise rare discretion to questions of desirability and validity of bills. Governor sent for reconsideration he disagrees with the basis of the bill and questions about legislative competence of legislative assembly which he is not entitled to. Generally the governor had no jurisdiction to directly interfere with legislative jurisdiction and competence of assembly. If he personally disagrees with a bill he cannot go against the advice of the council of ministers as mandated by the constitution. This was clearly reiterated by the Sarkaria Commission.


CONCLUSION

The Advantage of this exam is Unified exam at all India level and a transparent process for seat allocation. The Disadvantage is barrier to accede this course for rural and weaker sections and one drawback is that it cuts off the role of state government in seat allocation and this issue is also debatable. End of the day the subject of public health is state subject. They are responsible and have to say who joins the medical course. The NEET takes away this right from the state government. This is where the Tamilnadu government main point of objection. The Chief minister of Tamil nadu Stalin also wrote a column in Hindu "Neet is discriminatory against social justice" he is trying to defend the educational rights mainly of medical aspirantd if rural and weaker sections. It not only upholds social rights but also to protect federal rights of the government of Tamilnadu and legislative assembly. The bill has to be sent to the President for his assent as it will be enacted under the entry of concurrent list governed by central law. If state law is in direct conflict with central law then the governor is bound to reserve the bill and send it to the president for consideration under Article 200 of the constitution. The legislature should make a new provision or give a time limit for the governor for withholding the assent to the bill. By taking away this grey area of the constitution many awaiting future goals of people will get succeed, awaiting bills related to the respective state governments interest will get succeed.



"NO GOVERNMENT KNOWS ANY LIMITS TO ITS POWER

EXCEPT

THE ENDURANCE OF THE PEOPLE"


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