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Straight from the Bar: Draft amendments to the Constitution to solve the Maharashtra House of Cards

When the text of the Constitution is not enough, Straight from the Bar is here to explain
When the text of the Constitution is not enough, Straight from the Bar is here to explain

The House of Cards playing out in Maharashtra has left a lot of us very confused about the role and functioning of the Governor.

It’s funny how there is no clarity over literally the one job the Governor has to perform. This can, at some level, be attributed to the fact that the Constitution of India, despite being the world’s longest written Constitution, is almost entirely silent about party politics.

I decided to fill in this gap for our readers:

Chapter II.—The Executive
The Governor

153. There shall be a Governor for each State:

Provided that nothing in this article shall prevent the appointment of the same person as Governor for two or more States in case the states are so tiny that nobody cares, or if the Governor is exceptionally loyal to the Central Government.

154. (1) The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.

(2) Later Articles of this Constitution will clarify that this means that he must merely affix the seal of his office on all decisions taken by the Chief Minister.

Provided that the Chief Minister belongs to the same party/coalition as the Prime Minister.

(3) Notwithstanding anything that may be provided in Article 154(2) and the provisions referred therein, the Governor shall enjoy discretion in this regard.

Provided that discretion shall be understood in the manner defined under the proviso to Article 163(1).

155. The Governor of a State shall be appointed by the President by warrant under his hand and seal, signed and affixed blindly at the instance of the Prime Minister/Home Minister.

156. (1) The Governor shall hold office during the pleasure of the President. Prime Minister/Home Minister.

It is hereby clarified that this is not a raunchy joke made by this amendment but the language used by the Constituent Assembly. Any queries regarding what amounts to the pleasure of the Prime Minister/Home Minister may be taken up with their staff. That pun was intended.

157. No person shall be eligible for appointment as Governor unless he is a citizen of India and has completed the age of thirty-five years.

It is clarified that he need not have any qualifications whatsoever, save and except an undying fealty to the Central Government and the lack of a spine.

159. Every Governor … make and subscribe in the presence of the Chief Justice of the High Court exercising jurisdiction in relation to the State, or, in his absence, the seniormost Judge of that Court available, an oath or affirmation in the following form, that is to say—

“I, A. B., do swear in the name of God/solemnly affirm I will faithfully execute the office of Governor (or discharge the functions of the Governor) of .............(name of the State) 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 ...........(name of the State ruling party at the Centre).”

161. The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.

Provided that the Governor may never exercise this power, unless the person has been convicted of assassinating a former Prime Minister or Chief Minister.

163. (1) 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.

Provided that his discretion shall be bound by the aid and advise of the Prime Minister/Home Minister.

(2) 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.

Because, after all, it was not really his discretion.

Provided that, the Supreme Court may nonetheless call it into question because it appears that the Supreme Court grants itself jurisdiction to look at whatever it wishes regardless of what this Constitution states.

Provided further that, there will be no real criminal or political sanction for the violation of these provisions of the Constitution, with the only consequence being the charade playing out in courtrooms along with the media.

Provided further that, the Supreme Court must prioritise these matters over the life and liberty of people, even if those people are civilians in complete lockdown for months.

(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court lest it implicate them politically or legally.

164. (1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor:

(2) The Governor shall invite the leader of the single largest party to form the Government. In case the party fails to do so, he may invite the leader of the second largest party and so on.

Provided that ‘single largest party’ may mean any of the following as per the discretion of the Governor:

a. Largest coalition or party;

b. Party securing the most seats;

c. Party securing the most votes;

d. Party with the most realistic realpolitik chance of forming the government.

e. Party with the funds to buy enough members of the House.

f. Party which the Governor wants, in his discretion, to see in power

It is clarified that discretion herein is to be understood as per the proviso to Article 163(2).

Provided further that whether or not to invite the second largest party or third largest party is also a subject matter of discretion as per Article 163(2).

I hope this amendment of the Constitution provides much needed clarity to practitioners, academicians and judges (let’s face it, it still won’t be of much help to the lay public).

Perhaps the Constituent Assembly was wise not to include parties in the Constitution, lest their repeated and flagrant violations make the Constitution itself lose its sanctity.

The author of Straight from the Bar is an advocate. Alex is a pseudonym. The post is satire. Mostly. Last week’s and other columns in the series are available here.

Photo by Geospatial World.

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