Politicians, those censured by courts should not be appointed as Governors: Justice Rohinton Nariman

Former Supreme Court Justice Rohinton Fali Nariman recently called for the establishment of constitutional conventions to regulate the appointment and removal of Governors and to prevent Raj Bhavan from undermining elected mandates of State governments..Justice Nariman called for a bar on appointment of politicians as Governors, pointing to the oath of office taken by Governors. “Please look at the Governor’s oath. What does he have to do? He has to abide by the Constitution and look after the people. In doing so, obviously, you cannot appoint a person who is going to violate his oath immediately. You cannot appoint a politician who belongs to your party, for example. So establish a healthy convention saying no such person can be appointed,” he said.Justice Nariman also proposed that Governors censured by courts be removed from office.“Suppose a Governor blatantly violates the Constitution and, instead of assenting to ten bills, sends all ten bills to the President. The Court castigated such action, but despite this, we do not see any removals… Either the Court does it, or you establish a convention that once a constitutional court like a High Court or the Supreme Court castigates a Governor, the Centre must remove him.”Justice Nariman also drew attention to the contrasting constitutional architecture when it comes to the President and the Governor where the former's tenure is carefully guarded but the latter can be removed from office with more ease.“[Article 156] says the Governor holds office ‘during the pleasure of the President.’ In effect, this means hire and fire at will,” Justice Nariman said. .However, he added that such constitutional conventions can be established only if there is a real two-party system, where today’s opposition is tomorrow’s government. “I would firmly wish that certain constitutional conventions be laid down. This can only happen if a party in opposition becomes the party in power, and vice versa. It cannot happen if things continue as they have since 2014,” he said. .Justice Nariman made these remarks while delivering the Seventh MK Nambyar Endowment Lecture hosted by the West Bengal National University of Juridical Sciences in Kolkata.His remarks come at a time when different non-BJP ruled States have been waging legal battles over what they allege as interference by Governors into the legislative domain of States. The remarks also come in the backdrop of the recent judgment of the Supreme Court laying down definitive timelines and procedures for the President and State Governors when considering bills passed by State legislatures. The top court's April 8 ruling prescribed timelines for the President and the Governor to decide on bills and also held that the Governor’s inaction under Article 200 (Governor's powers regarding assent to bills passed by the State Legislature) was subject to judicial review..In his address, Justice Nariman warned against delay tactics adopted by Governors when presented with bills passed by State legislatures.“Neither a Governor nor the President can sit indefinitely on a bill in order to defeat the legislative process. Every action must be performed within a reasonable time,” he underlined. He also emphasised that Courts have the power to step in when Governors withhold assent to bills indefinitely. Even Presidential decisions to withhold assent is not beyong judicial scrutiny. “If, ultimately, the President withholds assent, that is not an action beyond judicial scrutiny. It is not correct to treat such a ‘killing’ of a bill as immune from review,” Justice Nariman explained. .Justice Nariman concluded by underscoring that building strong constitutional conventions will only strenthen our democracy.“Ultimately, what matters is not only what the Constitution says, but how it is worked. If it is worked in a manner detrimental to the people, it is not worth having. If its gaps are filled by healthy conventions, then it becomes a living Constitution.”.Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.