Law often faces its death knell at the altar of interpretation. These days, everyone who can read, write and hear deliver ex-tempore judgment often riddled with bias and prejudice. Believe it or not, the fact is that we look at things through coloured lens and from a stand point. Worse is, in the name of being ‘just’, some assume the point of ‘centre’ as if it is neither right nor wrong. This is a very dangerous proposition because a spade should be called a spade.
With respect to the misadventure of Tamil Nadu Governor, especially on the opening session of State Assembly for this calendar year, there are umpteen number of ex-tempore judgements delivered on print, TV and social media platforms not following the due process of ‘find the facts-find the law-fit the facts to the law.’ “Ignorantia juris non-excusat” (Ignorance of law excuses no one) can never be allowed to scuttle proper understanding leading to truth of the matter.
The British Model
We have adopted the British model of Parliamentary democracy. Probably, Dr. B. R. Ambedkar, when pressed into drafting the Indian Constitution and having gone through constitutions of different countries, was impressed by the Mother of Parliament (England), which propelled him to structure Indian Constitution on its model suitably cementing various provisions to match Indian conditions. In England, it is called ‘House of Lords and House of Commons’ and in India they are christened as ‘Rajya Sabha and Lok Sabha’. The root of today’s practice and controversies surrounding them stem from the practice of House of Commons in England.
In England, the Queen’s or King’s speech marks the beginning of each new session of Parliament wherein She or He reads the document portraying government’s policy and the programme to be implemented. The text is prepared by the Council of Ministers and sent to the Queen or King for approval well ahead of time so that She or He is familiar with the content. On the penultimate day, the Queen or the King reads the text as prepared by the government thereby respecting the people who voted them to power. There had never been an episode of Queen or King and the government being at loggerheads simply because each of the parties played their well-defined role according to rule book and established conventions. This is because: a) the principle of ‘nemo dat quod non habet’ (no one can give what they do not have); b) due respect for the constitutions and established conventions; c) respect for democratically elected representatives led by the Council of Ministers; and d) wisdom to not cross the boundaries and encroach.
The Role of a Governor
Akin to the role of Queen or King in England, the role of the Governor in India is precisely defined in our Constitution Article 153. His primary function is ‘to preserve, protect and defend the Constitution’. At the time of taking charge, Governor of Tamil Nadu would have taken oath according to Article 159, as “I, R. N. Ravi, do swear in the name of God/solemnly affirm that I will faithfully execute the office of Governor of Tamil Nadu and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of Tamil Nadu.”
Articles 176 requires the Governor to make a special address at the first session of the Assembly in each year. Governor’s address is nothing but a statement of policy of the state government.
The Governor’s address, though he is a nominal head of the State, is a very solemn occasion where every protocol is followed to precision. Though the post of Governor and his/her relevance in today’s democracy is a contentious subject matter of discussion, one can’t simply undermine the Governors’ role as the constitutional head of the State and protector of Indian Constitution.
His presence and interference are very much essential to protect the values enshrined in the Constitution in case the ‘Legislatives’ make mistakes driven by majoritarianism and wrong ideology. There is every possibility this can happen. This is one of the perils of Indian democracy. When we don’t have mature electorates, very true indeed, a government can easily go against the Constitution saying that they have the mandate of the people. When electorates cast their votes after receiving ‘cash for votes’, when they are polarised on the basis of religion and caste, when they are driven by emotion rather than reason, when they lose their scientific temper, and when they believe in narrow minded-false construct imposed on them, the role of the Governor is a prerequisite for the effective functioning of ‘true democracy’, protecting the rights of each citizen as enshrined in the constitution.
But what we witness today is a situation wherein the protectors become the predators. The reasons for this sorry state of affairs are: a) less or no regard for the constitution and its values, b) vote bank politics often polarising people on the basis of religion and caste, c) narrow minded construct of nationalism, and d) fanaticism. It is not a million dollar question why only a few Governors are at loggerheads with the respective State Governments like Kerala, Tamil Nadu, West Bengal, Telangana, Delhi, etc.
Immunity enjoyed by Governors
Like all Legislators in India, the Governors also enjoy immunity. On the one hand, a Governor holds his office during the pleasure of the President (Article 156), and on the other hand he enjoys complete immunity bestowed on him by different sections of the Constitution. Article 163 reads: “If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion”. According to Articles 361 “…..the Governor of a State, shall not be 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, no criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any court during his term of office.” The jurisprudence of the immunity granted to Governors and Legislators can never be questioned but the present day practice draws flak.
A Governor has to dance to the music played by his masters/appointees and there is immunity for all the misadventures. These two characteristics are responsible for today’s sorry state of affairs involving Governors in India. Along with it comes a narrow interpretation and lack of clarity of certain provisions of Law. For instance, according to Article 200, every Bill passed by the Legislative Assembly of a State has to get the assent of the Governor to become effective. He has to assent or withhold his assent or reserve the Bill for consideration of the President as soon as possible. The term ‘as soon as possible’ practically means ‘indefinitely’ and this can never be contested. The term ‘as soon as possible’ can be interpreted and justified in any number of ways, thus hijacking the decision taken by the Legislators who are the directly elected representatives of the people. Thus, democracy suffers a jolt by the very action or inaction of the Governors.
Acts of Omission and Commission
The Supreme Court has held in several cases that constitutional conventions are as much a part of the Constitution as its written text. Per se, a Governor after delivering his customary inaugural address leaves the Assembly only after the National Anthem is played. As a first man of the State, it is the bounden duty of the Governor to protect this well-established constitutional convention. This was breached by the TN Governor.
The word ‘Tamil Nadu’ had its Legislative approval on 14th January 1969. It is official and legal. The world “Tamizhagam” is also synonymously used. No one cares and no one disputed the usage of these two words until a controversy was created by the Tamil Nadu Governor. The writing is on the wall as to why the Governor raked up this issue which is highly emotional to the people of the State. Is he not trying to play with the fire?
When delivering the customary inaugural address, a Governor is not expected to leave out anything and add anything to the text prepared by the Council of Ministers. The State government is the true owner of the document. There are ample rules and conventions to point out his disagreement following a due process after which it is printed and circulated as the official version of the Governor’s address. When the Governor presents a different version other than the official document, a question arises as to the authenticity of the official document: whether the printed matter as approved earlier by the Governor or the oral presentation made by the Governor is the official version.
If the address has anything factually incorrect or objectionable, the onus of blame falls on the Chief Minister and the ruling party who have to defend it in the Assembly. Anyway, there is ample scope for debate and discussion to highlight what is factually wrong and objectionable by the members of the Assembly who do this job.
Above all what matters is not what he left out from reading but his intention, attitude and underlying message. A cursory look at the words the Governor chose to omit (Secularism, Social Justice, Dravidian Model of empowerment, B.R. Ambedkar, Periyar, Kamaraj, etc.) shows he has scant regard to the sentiments and ethos of Tamil Nadu. Left unsaid is his ideology and loyalty to his appointees. He seems to give what he doesn’t possess. In Shamsher Singh Vs. State of Punjab (1966), a seven-judge bench of Supreme Court delivered a judgement stating that ‘President/Governor is only the constitutional head, with real power being vested in the council of Ministers, on whose aid and advice the President/Governor exercises his powers and functions’.
On the one hand, he showed complete disregard to the Constitution and convention which he is supposed to protect and lead from the front. On the other hand, as an elder and first citizen of Tamil Nadu, he should be truly representing the people of the State and their aspirations that are within the legal ambit. He is found wanting on both the fronts. But that is what his masters want him to be. Only the President of India can prevail upon him. Will she do it? This is not a far-fetched question given the present dispensation at the Centre.
(The writer is the Dean – School of Management Studies, St. Joseph’s College, Trichy)