Dr. Justice A. K. Rajan, L L D
Continuing from the previous issue
Conventions are binding
One of the axiomatic principles of Constitutional law is that written text of the Constitution is not the exhaustive source of constitutional law. As early as 1955 the SC in Ram Jawaya Kapur vs State of Punjab has laid that “It is now well settled that since the Cabinet system of Government has been introduced into the Indian Constitution from the British model and since all the conventions cannot be possibly be codified exhaustively, it would be legitimate to refer to the British conventions in interpreting the provisions of Arts 74-75, unless, of course, they are excluded or modified by these or other provisions of the Constitution of India. This was reiterated in S.R. Bommai vs Union of India by a nine-judge bench in 1994. Also in1994, another nine- judge bench of the Supreme Court, in ‘S.C. Advocates on Record Association Vs Union of India’ has categorically held, the following binding and enforceable principles of law:
1. Under Article 13 (3)(a) even custom or usage, when established, may have the force of law and may be enforceable in a Court provided it is not inconsistent with the Fundamental Rights. Similarly, though a ‘convention’ as such is not enforceable as ‘law’, when it is established in a court of law that a convention exists and that constitutional functionaries are following as binding, then such convention would be enforceable as law.
2. In a written constitution, conventions are needed, because the framers of the constitution cannot foresee all future contingencies.
3. Therefore, conventions are natural growth to fill up the gaps in the constitution itself and to make it workable.
4.Under the Constitution of India, the primary instance of enforceable conventions is those for the working of the cabinet system of Government, introduced by Arts.74 -75.
Therefore, all the constitutional functionaries, including the Governor of any State and the President of India are bound to follow also the established conventions under the cabinet system of government, while assenting any Bill passed by the Parliament or State legislatures.
Royal assent last refused in 1708
In the British Constitutional history, after 1708, no Bill passed by Parliament was refused to be assented. Therefore, the convention is not to refuse assent or not to veto any Bill passed by Parliament, is a well- established convention, followed over 300 years, in the Cabinet system of Government.
President or Governor cannot refuse to give assent
Therefore, neither the President nor the Governor of any State can refuse to assent any Bill passed by the legislatures (Parliament or any Assembly). Such a refusal would be against the binding conventions and therefore, would be unconstitutional.
Views of National Commission
The National Commission to review the constitution in its report, dated May 11 2001, on ‘The Institution of Governor under the constitution has viewed as follows:
“What has been happening in fact all these years is that Governors generally act according to the instructions of the Home ministry at the Centre. If the party/group in power at the Centre is different from the one in the State (whose legislature has passed the particular Bill) and more particularly where the party in power at the centre is in opposition in the state legislature and opposed the said Bill, or for any other reason, the Home Ministry may instruct the Governor either to withhold his assent or reserve it for the consideration of the President-or return the Bill in case of the party position in the legislature has, in the meanwhile, undergone a change. If any such instructions are received by the Governor, most likely, he would act according to them, notwithstanding the advice of his Council of Ministers to the contrary. This is clearly an undemocratic exercise of power by the Governor. To wit, the Governor is a part of the State Legislature and the Council of Ministers is to advise him in the matter of exercise of his powers. The people or the Legislature have no, absolutely no, remedy against any arbitrary withholding of assent, inordinate delay in granting assent or unwarranted and unjustified reservation of a Bill for the consideration of the President. ……..The legislature can’t even impeach the Governor since there is no such provision in the Constitution. May be the power to withhold assent is understandable in the case of the President (Atricle111) who is elected by Members of the Parliament and the State Legislatures and can therefore claim a certain amount of legitimacy but not the Governor who is a mere appointee”.
The above view has been given by commission without taking into account the binding constitutional conventions.
Conclusion
No instrumentality of government nor any citizen of India has any doubt that Indian Constitution established cabinet system of Government, similar to United Kingdom. Yet, some unhappy situation has arisen because the Constitution of India has adapted the same provisions found under the 1935 Act, on the assent of the Bills passed by the legislative bodies. Only the inapplicable words, such as, ‘His Majesty’ and ‘Governor General’ have been modified.
There is a justifiable criticism on the drafting of the Constitution, that it was a hurriedly drafted Constitution driven by ‘emotions’, rather than ‘reason’. The Constituent Assembly, showed more concern on the Fundamental Rights and the Directive Principles of State policies. The inter relationship between the Centre and State and the rights of the Provinces and the Centre-State relations were not given due attention and adequate importance, by the Constituent Assembly.
It is said, that the drafts were to be approved by the Congress Working Committee, prior to discussion by the Constitution Assembly. That may be a contributory factor for such lapses. Further, the said drafting committee must have been under a firm view that established conventions would not be broken by the instrumentalities of the Government. The fact that after 1708, no Bill passed by the Parliament of UK was refused to be assented by the King and the fact that Constitution of India established Cabinet system of government and not Presidential form of Government and the fact that no Bill passed under the GoI Acts from 1919, was refused to be assented by the Governors, might have resulted in the omission, to delete the word ‘withhold’ in Arts 111 and 200, as that was brutumfulmen. Whatever may be the reason, the non-omission of the word ‘withhold’ in these articles is a lapse on the part of the Constituent Assembly and its drafting committee.
Of late, the Governors of States started ignoring the conventions, either deliberately, or under directions from the Central Home-ministry, as stated by the National commission. It is on the basis of a false notion that the Governor is the real administrative head, as opposed to the fact that the Governor is only an ornamental head. Whatever be the real reason, the fact remains that under the Indian Constitution the Governor or the President has no power to veto any Bill passed by the legislatures. The long-established convention that a Bill passed by the legislatures cannot be vetoed, is being violated, for some reason or other. Such acts are against the spirit of the Constitution of India.