JANUARY 04, 2024

By Naresh Minocha, Consulting Editor

THE Supreme Court's recent, critical observations on the issue of Governors not giving assent to bills passed & re-passed in some cases by State Assemblies are shocking.

In its verdict dated 10th November 2023 in Punjab versus Governor's office,the Supreme Court concluded:"there is no valid constitutional basis (for the Governor) to cast doubt on the validity of the session of the Vidhan Sabha which was held on 19 June 2023, 20 June 2023 and 20 October 2023. Any attempt to cast doubt on the session of the legislature would be replete with grave perils to democracy."

It stated:"the Governor of Punjab must now proceed to take a decision on the Bills which have been submitted for assent on the basis that the sitting of the House which was conducted on 19 June 2023, 20 June 2023 and 20 October 2023 was constitutionally valid."

The seven bills, which the Governor implicitly sought to nullify by dubbing the assembly sessions as patently illegal, included The Punjab Fiscal Responsibility and Budget Management (Amendment) Bill, 2023; The Punjab Goods and Services Tax (Amendment) Bill, 2023; and The Indian Stamp (Punjab Amendment) Bill, 2023.

This & apex court's alarming observations in two other similar cases reflects the persistence of a totally avoidable problem for about 60 years. The underlying causes for this issue are two.

First, a non-elected Governor holds a constitutional post, enjoys immunity from prosecution and accountability from the Parliament. Moreover, the Constitution has not specified in clear terms the discretionary power that he/she can wield. This makes the non-elected governors think they can dictate terms to elected governments and state assemblies.

Second, the Constitution has not specified any time limit for Governor in assenting the bills or sending them back to Government for reconsideration or reserving the bill for consideration by the President. This ambiguity empowers the Centre to delay State bills through Governor or directly through President for as many years as desired.

This situation led Mr. Narendra Modi, as Gujarat CM, to declare: "the nation needs freedom from the ego of the governors" while addressing 67th Independence Day celebrations at Bhuj on 15th August 2013.

Earlier on 12th October 2010, while targeting the Congress, he stated: "It's in front of people how the post of Governor is misused."

Mr. Modi, like West Bengal Chief Minister Mamata Banerjee, once urged the then Prime Minister to recall the respective Governors. Similarly, three other Chief Ministers called for abolishing the post of Governor in 2016.

This and countless other instances of Governor-related friction between the Centre and the States underscores the urgency for solving the simple problem of impartial and responsible conduct by the Centre-nominated Governors.

No wonder then that Kerala Government has urged SC to formulate guidelines on "the power of the Governor under Article 200 including (a) when a Bill can be reserved for the consideration of the President; (b) when the Governor is authorized to return the Bill to the Legislative Assembly with a message; and (c) under what circumstances the Governor may grant his assent to the Bills so presented". SC is expected to resume hearing of this case in the second week of January 2024.

Such avoidable litigation is sheer waste of the nation's precious time and money. And, this is solely due to lack of political will shown by successive regimes of all political hues at the Centre over the decades.

All regimes have avoided fixing timelines for deciding the fate of State bills in spite of recommendations from three Commissions chaired by eminent jurists.This is a hat-trick of inaction circa 2024!

The TV news channels have not reported it the way they did for BJP's recent hat-trick (election victory) in the states as a guarantee of its hat-trick of Lok Sabhapoll wins in 2024.

Nothing can be more saddening than seeing the Governments cluttering courts, either with their petitions or with their counter-affidavits against the ones filed by petitioners aggrieved by the Centre's actions.

This itself is aided by policy paralysis on National Litigation Policy (NLP), which was unveiled by UPA in 2010. Modi Government reviewed this unimplemented policy and decided to frame a new one - NLP 2015.

The Government is now non-committal on timeline for framing and implementing NLP of its choice.This should make the BJP Government introspect over its hyped passion for reforms, speed and scale.

The policy paralysis on reforming role of governors & other aspects of Centre-States ties have thus acted as one of the biggest stumbling blocks in harmonious and speedy development of all States and Union Territories.

Policy paralysis in reforming Centre-State ties exemplifies a vicious circle of political vendetta, played alternatively by the Congress and BJP with the help of their respective allies. When BJP was in the Opposition in Parliament, it raised a hue and cry on misuse of governors by the Centre at the behest of Congress or Congress-led alliance. And when BJP came to power at the Centre, it resorted to the same political tricks that Congress or UPA regime played when it held reigns of "Delhi Sultanate", a term that Mr. Modi as CM used repeatedly to identify the Centre.

This game of political vengeance, in which citizens are helpless spectators, can end, only if central regime of the day rises above political considerations and acts in a spirit of cooperative federalism.

The frequent and multi-facet tussles between the Centre and the Opposition-ruled States (ORS)show the gulf between the former's intent on role of governors and their conduct.

Modi Government's good intent on role of governors is embodied in its official documents. The notable one is a report submitted by Committee of Governors to the President in January 2018. It is captioned ' Rajyapal -Vikas Ke Rajdoot: Catalytic Role of Governors as Agents for Change in Society '.

The report aptly carries forward Prime Minister Narendra Modi's speech delivered in October 2017. He stated:"Governors can become catalytic agents for change in the society, while upholding the sanctity of the Constitution."

The Report primarily focuses on attaining Mr. Modi's New India Vision and Sarva Shrestha Bharat. It mentions- "Sarva Shrestha Bharat encompasses India that is Swachh, Shrestha, Sushashit, Surakshit, Vikasit, Swasth and Shikshit." It lists out priorities for each of these six elements of Sarva Shrestha Bharat.

The Report recommends that Raj Bhavan's prepare"action-outcome framework"in their roles as change agents. It suggests that governors can"mentor implementation of development programs, especially centrally sponsored schemes".

This report was followed by another report by another Committee of Governors and submitted in September 2018. The Government has not implemented recommendations contained in this report titled‘ Approach to Agriculture: A Holistic Overview'. These two reports were preceded by another report on best practices adopted by different Raj Bhavans.

Even a layman would wonder how can governors act as 'Vikas KeRajdoot' when they are permanently locked in tussle with the Opposition parties-led Governments. Should the voters in ORS suffer just because they didn't endorse Modiji's vision of 'double-engine government' (BJP at Centre & the States) for trouble-free functioning of the State Governments.

The Centre owes an explanation for its failure to act on Mr. Modi's sermons on this issue that he delivered eloquently as Gujarat Chief Minister. What he stated is as much relevant as it was when UPA was at helm of affairs.

The frustration of CMs of ORS over the Governors' confrontationist approach is akin to the raw deal that Mr Modi and CMs from other Opposition parties got when the Congress or Congress-dominant alliances were in power at the Centre.

Recall the "torment" and "torture" (both Modiji's words) that he suffered as CM under UPA regime. He cited one such instance while addressing Vivekanand youth convention in Junagadhon 14th August 2012.

Mr. Modi stated: "We made a resolution in the Assembly that there would be 50% reservation for women at Taluka Panchayat, District Panchayat, Gram Panchayat, Municipality and Municipal Corporation. Unfortunately, our Governor did not sign on this resolution and left it pending, it has been pending for a year. This does not suit our democracy."

He continued:"In spite of a woman Governor (an obvious reference to KamlaBeniwal), such anti-Gujarat and anti-women activity continues. We are the people who respect and honor the post of the Governor, but if Governor's House becomes a den for political tricks, citizens of Gujarat will not tolerate it and the Gujarat Govt. is determined to fight against it."

This is not an isolated instance of Mr. Modi, as CM, pouring out his anguish and anger at hurdles created by the Centre in the Vikas Marg of States. An avid researcher of Mr. Modi's speeches can list out each & every instance of challenges he faced from UPA-appointed Governor& central investigative agencies.

Mr. Modi's pain earlier reverberated at meetings of BJP National Executive Committee (NEC). He, in fact, moved a resolution at BJP's NEC meeting held at Lucknow during June 2011.

Captioned 'UPA - a Grave Threat to our Federalism ', the resolution stated:"states suffer when their legislatures pass crucial Finance and other Bills which await the Governor's or the President's consent, months on end. Till recently, NDA-ruled Bihar had more than 14 Bills, some of which were Finance Bills awaiting consent. Other BJP ruled states also are enduring such experiences. Uttarakhand's Bill to set up Pandit Deendayal Upadhyaya University passed by its legislature is being held up at the Raj Bhavan."

The Resolution called for"a nationwide discussion in the light of the Sarkaria and Justice Venkatachaliah Commission to revisit the appointment, the role and the functioning of Governors."

This too is not a one-off case of BJP flagging dubious conduct of governors, alegacy issue of colonial era that figured in Constituent Assembly too. Way back in November 1996, BJP NEC passed a political resolution on this issue.

As put by the Resolution: "The Governor is the only constitutional authority not accountable to Parliament for his actions, and this distinctive character of the office has been misused behind the garb of gubernatorial discretion. The BJP feels that an Instrument of Instructions for Governors, as suggested by Dr BR Ambedkar during the Constituent Assembly debates, will serve as a corrective."

Mr. Modi would have been spared of the ignominy, had UPA not crossed the Lakshman Rekha in realm of political plotting.

UPA turned deaf ear to Mr. Modi's sermons on reforming the role of governors and many other aspects of the Centre-State relations. No one in the country, however, expected him to turn maun (mum) on his own sermons after becoming PM. He didn't embrace consensus politics and vendetta-free governance that he promised repeatedly,before and immediately after becoming PM.

It is then hardly surprising to see the kaal chakra of vengeance politics turning the tide against constituent parties of erstwhile UPA (United Progressive Alliance)& other opposition parties under Modi Government.

No one perhaps realized that ORS would have to suffer at unprecedented speed and scale under BJP regime.Modi Government, on the other hand, did not foresee that this ongoing legislative paralysis would get a sympathetic chord in the Supreme Court.

It has lately heard Punjab, Tamil Nadu, Kerala and Telangana against their respective Governors withholding assent to state assembly-passed bills for long period without any explanation from Governor's office. In certain cases, the bills, re-passed by assemblies without any change, have been kept pending for assent, in breach of the Constitution.

ORS were left with no option but to approach judiciary because of blockage of other avenues such as Inter-State Council (ISC). It has not been convened by Prime Minister since July 2016, in contravention of Presidential order dated 28th May 1990 issued under Article 263 of the Constitution.

Named ISC Order, 1990, it stipulates: "the Council shall meet at least thrice every year and at such time and place as the Chairman may appoint in this behalf." As CM, Mr. Modi himself repeatedly demanded that ISC should meet at least twice a year.

As for fixing timelines for Governor & President deciding the fate of State bills, the first Commission to recommend clear-cut timeline for deciding fate of the legislations was the Indira Government-appointed Sarkaria Commission on Centre-States relations.

In its report submitted in 1988, it recommended: "if the Governor thinks it necessary to act and adopt, in the exercise of his discretion, any other course open to him under Article 200, in respect of any Bill, he should do so within a period not exceeding one month from the date on which the Bill is presented to him. These rules of practice should be firmly adhered to and seldom departed from."

Sarkaria Commission also recommended timelines and procedure for the President to dispose of bills forwarded by the Governors as they had certain reservations over the bills passed by State Assemblies.

As a matter of salutary convention, a reference should be disposed of by the President within a period of 4 months from the date on which the reference is received by the Union Government.

The second panel to suggest reforms in assenting of state bills was the Vajpayee Government-constituted National Commission to Review the Working of the Constitution (NCRWC).

In its report submitted during March 2002, NCRWC recommended:"There should be a time-limit say a period of six months within which the Governor should take a decision whether to grant assent or to reserve a Bill for consideration of the President. If the Bill is reserved for consideration of the President, there should be a time-limit, say of three months, within which the President should take a decision whether to accord his assent or to direct the Governor to return it to the State Legislature or to seek the opinion of the Supreme Court regarding the constitutionality of the Act under article 143."

There has been no action-taken report on recommendations of NCRWC. This shows both BJP and Congress are two sides of the same coin called policy paralysis.

Like NCRWC, UPA-constituted Commission on Centre-State Relations (CCSR) pitched for timelines, In its seven-volumes report submitted in 2010, CCSR(also referred to as Punchhi Commission), suggested: "it is necessary to prescribe a time limit within which the Governor should take the decision whether to grant assent or to reserve it for consideration of the President. The Commission had earlier recommended that the time limit of six months prescribed for the State Legislature to act on the President's message on a reserved Bill should be the time limit for the President also to decide on assenting or withholding of assent. The Governor accordingly should make his decision on the Bill within a maximum period of six months after submission to him."

Punchhi Commission suggested that the Centre "should adopt strict guidelines as recommended in the Sarkaria report and follow its mandate in letter and spirit lest appointments to the high Constitutional office should become a constant irritant in Centre-State relations and sometimes embarrassment to the Government itself."

Leave aside row relating to Governors' role, there are a whole lot of centre-States and inter-State issues that need to be sorted out. At its first and the only meeting held during July 2016 under Mr. Modi's chairmanship, ISC avoided taking a call on Punchhi Commissions' 273 recommendations that were placed before it along with comments of all Union Ministries, States & UTs.

ISC decided that the recommendations should first be examined by its Standing Committee. ISC completed this job in three meetings in 2017 & 2018.

The Government told Rajya Sabha on 12th December 2018 that -"The same are now to be considered by the ISC in its next meeting/meetings. Draft Agenda Notes have been prepared for placing these recommendations before the ISC for decision. The date for holding the meeting of ISC has not been decided."

The nation is awaiting Modiji's guarantee that ISC would meet before the Lok Sabha polls to decide on Punchhi Commission's recommendations.

It is here apt to cite Planning Commission- requisitioned Gorawala Report on Public Administration. Submitted in 1951, the report recommended: "There must be no clash between the Centre and the States as regards objectives, policy and implementation."

Both PM and CMs and all secretaries to Centre and States should etch this wisdom on the home page of their digital devices. Let this serve as potholes-free road in Amrit Kaal.