It has been over a month since the Kerala Assembly passed the Lok Ayukta (Amendment) Bill and the University Laws (Amendment) Bill. But they are yet to become law as Governor Arif Mohammed Khan has refused to give his assent to these bills. In fact, quite in tune with his penchant to set new gubernatorial precedents, Governor Khan had openly declared that he would not give his nod to these two bills.
Civics lessons in schools have taught children that the Governor is a mere ornamental head who has nothing more to do except abide by the advice of the elected council of ministers.
Of course, the Constitution does allow the Governor to be his own man, even if only fleetingly. For instance, when a State Legislature passes a Bill, the Governor, if he has reservations, can send the Bill back with a request to incorporate his set of changes. However, if the Assembly re-directs the Bill with or without the changes, the Governor has no choice but to give his assent.
In certain cases, the Governor can also reserve the Bill for the consideration of the President. Otherwise, the Constitution has never given the impression that the Governor can delay giving his assent to a Bill passed by an elected body. But Governor Khan and his counterpart in Tamil Nadu, R N Ravi, have demonstrated that they could do so with impunity.
Power of imprecision
Their power flows not from what is written but from what has not been specified in the Constitution.
Article 200 of the Constitution says that the Governor can withhold assent. But if he does so, the Article states that the Governor has to send back the Bill for reconsideration. And how fast should he send the Bill back to the Legislature? “As soon as possible,” Article 200 says.
It is this vague “as soon as possible” phrase that politically combative governors like Khan and Ravi have used to stall the legislative process indefinitely. “As soon as possible can mean anything. It can even mean five years, the term of an elected government,” said P Wilson, DMK's Rajya Sabha MP who had moved a Private Members' Bill last February seeking an amendment to Article 200 of the Constitution.
A Private Members' Bill is a legislative mechanism that allows a ruling or opposition legislator who is not a minister to introduce a bill in the Assembly or Parliament, and it is generally forgotten after the Bill is tabled and in most cases it is not even debated.
Importance of a deadline
Wilson's Private Members' Bill wanted the words “as soon as possible” replaced with “within a period of one month”. In Article 200 there is no time limit specified for sending the Bill to the President either. Wilson, therefore, wanted the words “within a period of one month from the date of receipt of the Bill” to be inserted after the words “for the consideration of the president”.
“They allowed me to present the Bill but there was no debate on its contents,” Wilson told Onmanorama.
The DMK MP was provoked by the Tamil Nadu Governor's indifference towards the Tamil Nadu Admission to Undergraduate Medical Degree Courses Bill, or the anti-NEET (National Eligibility cum Entrance Test) Bill, passed by the State Assembly in September 2021, which seeks to take Tamil Nadu out of the NEET structure.
The Governor had sent the Bill back to the Assembly and the Tamil Nadu Assembly reconvened and returned the Bill without any changes. “Now, he is sitting on it indefinitely, without forwarding it to the President for her assent as the subject falls under the Concurrent List,” Wilson said.
He said the Governor was not even giving his assent to amendments that were necessitated by the Supreme Court rulings. “Certain amendments were made to the Tamil Nadu Cooperative Societies Act after the Supreme Court struck down a part of the 97th Amendment (introduced in 2012 and related to the running of cooperative societies). The apex court had said these provisions impinged on the authority of states, and was anathema to our federal structure. The Governor is not giving his assent even to such a Bill that originated from a Supreme Court ruling,” Wilson said.
Suspending people's will
Wilson said such delaying tactics amounted to “suspending the will of the people”. “Such people should be thrown out without delay,” the Rajya Sabha MP said.
Here is what the 'Statement of Objects and Reasons' of Wilson's Bill states. “All Bills passed by the State Legislature are for the welfare of the people of the state. The State Government's functioning cannot indirectly be curtailed and rendered inutile by the actions of the Governor, a Union Government appointee. That infringes the balance of power between the Union and States established by the Constitution.”
Governor's 'kavacha kundala'
Adding to the woes of states caught in such a constitutional deadlock is the legal immunity the President and governors enjoy. Under Article 361 of the Constitution the President or the Governor is not answerable to any court for the exercise of the powers and duties of his offices.
“The Governor can be challenged in the court, but that can happen only if he reveals the reasons for withholding the assent. Only then can we move the court saying that the Governor's intentions are mala fide and unconstitutional,” a top official in the Law Department told Onmanorama.
Khan's displeasure
The reasons for Kerala Governor's objections are evident. The Lok Ayukta (Amendment) Bill and the University Laws (Amendment) Bill strip him of his powers.
In the original Kerala Lok Ayukta Act, 1999, the Governor was the competent authority in the case of any findings against the Chief Minister. The Bill that is awaiting gubernatorial assent has taken this power from the Governor and handed it over to the State Legislative Assembly.
The University Laws (Amendment) Bill will virtually extinguish the Governor's role in appointing a vice-chancellor by including two nominees associated with the state government to the search-cum-selection committee, which in its present form is a three-member body.
