By Suresh Unnithan
The conflict between the Pinarayi Government in Kerala and the Raj Bhavan is showing no sign of respite. The chasm between the two is widening. Chief Minister Pinarayi Vijayan appears combative and spares no chance to criticize Governor Arif Mohammad Khan. Vijayan publicly accuses Khan for acting contrary to the interest of his Left Front government and violating constitutional provisions as the governor of the state. Castigating the governor for being arbitrary in his approach Vijayan had publicly “cautioned” Khan saying “no one in Kerala is above the state Assembly.” Chief Minister Vijayan had recently said that as per the provisions enshrined in the constitution the governor as head of the state was bound to endorse the decisions of the elected government. “The governor has no right on his own to shoot down or keep in abeyance indefinitely the recommendations and decisions of an elected government,” he had reiterated.
During a candid conversation with this correspondent at the Raj Bhavan, Governor Khan said “let me say with all firmness and clarity that none can dictate the Raj Bhavan. The only authority that has power to order Raj Bhavan is the President and none else.” Citing Article 163 of the Constitution of India, Khan elaborated the power vested with him as the governor of the state and said “none should dare to dictate to me on how the Raj Bhavan should function. Only and only the President has that right to dictate the Raj Bhavan.”
Article 163 (1) says “There shall be a council of Ministers with the chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion.”
Article 163 (2) says “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.”
Article 163 (3) says “The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.”
According to an expert in the Indian Constitution “a plain reading of the Article 163 (3) clarifies that the decision of the Governor with regard to whether he is required to act in his discretion or not, is final. Even the validity of anything done by him is not being called in question on the ground that he ought or ought not to have acted in his discretion. Article 163 (3) further suggests that with whether any advice was tendered and if so what advice was tendered by the Ministers to the Governor shall not be inquired into by any Court.”
Asked about the caustic outbursts of Pinarayi Vijayan and certain Left leaders the Governor Khan responded “the politics of pressure is not going to yield and I can neither be intimidated nor coerced. I have a strong nerve and firm conviction on what to do as head of the state and when to exercise the constitutional powers vested on me as Governor of the state.”
Currently, the constitutional powers of the Governor are being loudly debated in TV studios and social media. It is unfortunate; in most of such debates “constitutional experts” with half-baked legal wisdom are trying to establish their partisan views. “I think those who level allegations about the governor not adhering to the constitutional provisions need to understand that Arif Mohammed Khan is not any novice in politics and this is not the first time he is holding a constitutional post. Unlike those legal illiterates trying to misrepresent constitutional provisions, Khan is a learned lawyer who has adequate understanding of the constitution,” said a senior Supreme Court counsel.
The advocate further said that those who have less understanding of the constitution try to compare the powers conferred to the governor of a state to that of the President of India. Article 74 (1) says “There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice: Provided that the President may require the council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.” So as per the constitutional provisions the President has to function as per the advice of the union cabinet and it does not make it mandatory for the governor to adhere to the advice of the state cabinet. Article 56(1) says “The Governor shall hold office during the Pleasure of the President” not by the pleasure of the state government, said the counsel.
In fact Constitutional experts have reiterated”the Governor is not merely an Agent of the Center; rather, he is the Agency which will press for and guard the Central Policy.”
As per records, the Constituent Assembly had debated in depth for and against the appointment of governors. Citing the risk of not having any mechanism to check the “Provincial Governments” Jawaharlal Nehru has stated in the Constituent Assembly, “ I’m in favour of nominated Governors partly because it would keep the Centre in touch with the units and would remove the source of possible separatist tendencies.” (Volume 8. Page 454, Constituent Assembly Debates).
Though Dr. BR Ambedkar had certain objections to Nehru’s views, he also advocated for governor’s post saying “”Because the Provincial Governments are required to work in subordination to the
Central Government and therefore in order to see that they do act in subordination to the Central Government, the Governor will reserve certain things in order to give the President the opportunity to see that the rules under which the Provincial Governments are supposed to act according to the Constitution or in subordination of the Central Government are observed.” (Volume 8,. Page 502, Constituent Assembly Debates).
Many right thinking brains feel that to restrain the state governments from becoming an elected monocracy, the role of a knowledgeable person. Article 1 of our constitution states “India, that is Bharat, shall be a Union of States.”