Pages

Wednesday, June 25, 2014

Powers of the Governor under Emergency Provisions of Article 356


The power of the Governor under Article 356 to recommend failure of Constitutional machinery in a state has always been hotly debated. A lot of times it has been seen that the governor has acted as a mere puppet of the Central Government. However, things are changing now as the awareness among the public and the media has increased many folds. A fair of amount credit in this respect must be given to the courts of our Country. Time and again, the court has reminded the constitutional functionaries of their pious obligation towards the nation and towards the Constitution of India in particular. The case of Rameshwar Prasad & Other v. Union of India is a landmark case in this respect. It has handsomely dealt with whole of the jurisprudence relating to Article 356 of the Constitution of India. The present post contains relevant excerpts from the Rameshwar Prasad’s Judgment relating to Article 356.

Control of the Central Government over the Governor

An important role that the Governor has to play under the Constitution is of making a report under Article 356 where he finds that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution.

The Sarkaria Commission has noticed that more often than not, the provisions under article 356 have been misused, to promote the political interests of the party in power at the Centre. There have been examples where the power of Article 356 was invoked improperly if not illegally.

However, it has been held in plethora of cases that the Governor is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carries out his functions and duties. He is an independent constitutional office which is not subject to the control of the Government of India.[1]

Justice Krishna Iyer says that “the mode of appointment can never legitimize any form of interference in the working of the Governor, else the concept of "judicial independence" would not be tenable, as even the judges of the High Courts and the Supreme Court are appointed by the President”[2].

Also, time and again, the courts have noted that whether it is a case of existing Government losing the majority support or of installation of new Government after fresh elections, the act of the Governor in recommending dissolution of Assembly should be only with sole object of preservation of the Constitution and not promotion of political interest of one or the other party.

Relevance of the Governor’s Report under Article 356

Rameshwar Prasad’s also case states that:

“It is true that action under Article 356 is taken on the basis of satisfaction of the Union Council of Ministers but on that score it cannot be said that 'legal mala fides' of the Governor is irrelevant. When the Article speaks of the satisfaction being formed on the basis of the Governor's report, the legal mala fides, if any, of the Governor cannot be said to be irrelevant. The Governor's report may not be conclusive but its relevance is undeniable. Action under Article 356 can be based only and exclusively upon such report. Governor is a very high constitutional functionary. He is supposed to act fairly and honestly consistent with his oath. He is actually reporting against his own Government. It is for this reason that Article 356 places such implicit faith on his report. If, however, in a given case his report is vitiated by legal mala fides, it is bound to vitiate the President's action as well.”

Role of Governor in the Formation or Falling of Government

Whether the council of ministers have lost the confidence of the House is not a matter to be determined by the Governor or for that matter anywhere else except the floor of the House. The principle of democracy underlying our Constitution necessarily means that any such question should be decided on the floor of the House. The House is the place where the democracy is in action. It is not for the Governor to determine the said question on his own or on his own verification. This is not a matter within his subjective satisfaction. It is an objective fact capable of being established on the floor of the House.

If a political party with the support of other political party or other MLA's stakes claim to form a Government and satisfies the Governor about its majority to form a stable Government, the Governor cannot refuse formation of Government and override the majority claim because of his subjective assessment that the majority was cobbled by illegal and unethical means. No such power has been vested with the Governor. Such a power would be against the democratic principles of majority rule. Governor is not an autocratic political Ombudsman. If such a power is vested in the Governor and/or the President, the consequences can be horrendous. The ground of mal administration by a State Government enjoying majority is not available for invoking power under Article 356. The remedy for corruption or similar ills and evils lies elsewhere and not in Article 356(1).

Answerability of the Governor

In the State of West Bengal and Ors. v. Sallendra Nath Bose[3] it was held that a citizen is not without redress even though he cannot implead the Governor as a party but can be given relief. The position in law, therefore, is that the Governor enjoys complete immunity. Governor is not answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. The immunity granted by Article 361(1) does not, however, take away the power of the Court to examine the validity of the action including on the ground of mala fides.



[1] Rameshwar Prasad & Ors. v. Union of India.
[2] V.R. Krisnha Iyer, A Constitutional Miscellany (Second Edition, Lucknow: Eastern Book Co., 2003) at page 44.
[3] AIR 1964 Calcutta 184.

No comments:

Post a Comment