RAJ BHAVAN NEEDS RADICAL REFORMS

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THE CONTEXT: Recently, the Governor of Kerala visited the Calicut University campus and used inappropriate words as he termed the activists of the Students’ Federation of India “criminals”. This incident indicates to rethink about the behaviour of Governors in opposition-ruled states and to understand the legal consequences of such actions.

CONTEXT OF THE ISSUE:

• In Kerala, the State Assembly passed a Bill to abolish the Governor’s chancellorship. The Governor did not give assent to it and referred the Bill along with others to the President.
• This happened after he reserved the Bills for a long time and after the government moved the Supreme Court praying for governor’s assent.
• It was in this context that he visited the University as Chancellor, as against the will of the Assembly. This action of the governor lacked democratic legitimacy.

CHANCELLOR IN PUBLIC UNIVERSITIES:

• State public universities are established through laws passed by state legislatures. In most laws the Governor has been designated as the Chancellor of these universities.
• The Chancellor functions as the head of public universities and appoints the Vice-Chancellor of the university.
• The Chancellor has the power to declare any university proceeding as invalid which is not as per existing laws.

Governor discretion in his capacity as Chancellor:

• In 1997, the Supreme Court held that the Governor was not bound by the aid and advice of the Council of Ministers while discharging duties of a separate statutory office such as the Chancellor.
• The Sarkaria and Punchhi Commission also dealt with the role of the Governor in educational institutions.  Both Commissions concurred that while discharging statutory functions, the Governor is not legally bound by the aid and advice of the Council of Ministers.  However, it may be advantageous for the Governor to consult the concerned Minister.

COURT JUDGEMENTS RELATED TO POWERS AND PRIVILEGES OF GOVERNORS:

Limits to immunity:

• Article 361 of the Constitution: It provides only a limited and conditional immunity for the Governors. It says that Governors shall not be answerable to any court for the exercise and performance of the powers and duties of their office or for any act done or appeared to be done by them in their official capacity. Governors are liable for their misbehaviour unconnected with their official duty.
• Rameshwar Prasad v. Union of India (2006): In the case, after finding that the Governor abused power in recommending Presidential rule in Bihar, the Supreme Court said that the motivated conduct of the Governor tends to come under the judicial review. Yet, the question of whether Governors can claim immunity for extra-constitutional gestures was not a matter in issue in Rameshwar Prasad. However, the Court said that “right persons” should be chosen as Governors for maintaining “the sanctity of the post”.

Questions relating to derogatory comments by public functionaries:

Kaushal Kishor v. State of Uttar Pradesh (2023):

• The Court said that the freedom of expression of public functionaries could not be curtailed other than by way of the “reasonable restrictions”, as permitted by Article 19(2) of the Constitution.
• In the context of ministers, Justice B.V. Nagarathna said that if the statement by the public functionary is not consistent with the views of the government, it is responsible to the minister personally and they can be proceeded against the remarks.
• The majority opinion varied from Justice Nagarathna’s view on the method of enforcement of fundamental rights against non-state actors. The personal liability of public functionaries on matters unconnected with their public duty was not a topic of disagreement.
• It means if a crime is committed by a public functionary, there is no statutory or constitutional immunity for them. Offences such as defamation could be committed by a public functionary as well, when the act is unconnected with or is in apparent conflict with their official duty.

THE WAY FORWARD:

• Legal prohibition: The state legislative system requires systemic changes vis a vis the office of the Governor. There needs a legal prohibition against further rehabilitation of Governors in any official capacity.
• Amendment to the constitution: The government at the centre need to consider amending Article 155 of the Constitution related to appointment of Governors by ensuring consultation with the Chief Minister, as suggested by the Sarkaria Commission. An independent body for selecting the Governor with a significant role for the Chief Justice of India also might improve the quality of the selection process.
• Emphasising the notion of constitutional morality: Though, the Constitution cannot be expected to deal with the individual behaviour of public functionaries. However, the notion of constitutional morality should govern Governors with respect to their public conduct. In NCT of Delhi v. Union of India (2018), a Constitution Bench of the Supreme Court emphasised the need to identify the “moral values of the Constitution” based on a notion of “constitutional culture”. It said that the “constitutional morality places responsibilities and duties on individuals who occupy constitutional institutions and offices”.

COMMISSION REPORTS:

Sarkaria Commission:

• The Sarkaria Commission report (1988) raised concern that some Governors have failed to display the qualities of impartiality expected of them.
• It added that many Governors who looks forward to continue office under the Union or an active role in politics after their tenure came to regard themselves as agents of the Union.
• The Commission recommended that the Governor should be a detached figure and should not be intimately connected with the local politics of the State.

M.M.Punchhi Comission:

• The Justice M.M. Punchhi Commission report (2010) said that “to be able to discharge the constitutional obligations fairly and impartially, the Governor should not be burdened with positions and powers which are not envisaged by the Constitution.”
• It said that conferring statutory power on Governors by posting them as chancellors of the universities will have the potential to expose Raj Bhavan to “controversies or public criticism”.

THE CONCLUSION:

The office of the Governor is expected to defend the Constitution and may use their powers to caution elected regimes against violating the Constitution. But, this does not mean that they can use the absence of a time-frame for decision-making to misuse their powers. In this regard, a reasonable time frame for Governors to make a decision on a Bill passed by the Assembly is the need of the hour to protect the interest of federalism in the country.

PREVIOUS YEAR QUESTIONS

Q.1) Whether the Supreme Court Judgement (July 2018) can settle the political tussle between the Lt. Governor and elected Government of Delhi? Examine. (2018)

Q.2) Discuss the essential conditions for the exercise of the legislative powers by the Governor. Discuss the legality of re-promulgation of ordinances by the Governor without placing them before the Legislature. (2022)

MAINS PRACTICE QUESTION

Q. Governors seem to have an exaggerated notion of their own roles under the Constitution especially with reference to their role as chancellor of universities. Comment.

SOURCE: https://www.thehindu.com/opinion/op-ed/raj-bhavan-needs-radical-reforms/article67698598.ece