The recent Supreme Court judgment on the appointment of the Lokayukta in Gujarat is questionable not because of what it states but from what it fails to state. The court clearly states that the Governor must act on the aid and advice of the Council of Ministers in the State. At the same time the court has upheld the Governor’s decision to appoint the Lokayukta that went against the advice of the Council of Ministers. The court did this because the Governor’s decision was correct and the Gujarat government’s attitude violated the spirit of the Constitution. Therefore, when it comes to a question of upholding the Constitution and law the Governor can override the Council of Ministers.

This makes the Governor’s role in the State similar to the President’s role at the centre. Just as according to the Constitution parliament “consists of the President and two Houses”, so might the State Assembly be deemed to consist of the Governor and two Houses. Just as the President is the final authority to preserve and protect the Constitution and law at the federal level, the Governor is the final authority to preserve and protect the Constitution and law at the State level. Indeed that is why although the SC contradicted the view that the Governor could act without consulting the Council of Ministers it nevertheless upheld the Governor’s decision on the Lokayukta because the State government went against the Constitution by keeping the office vacant.

In its judgment in this case the Supreme Court stated:

“It is evident that the Governor enjoys complete immunity under Article 361(1) and that under this, his/her actions cannot be challenged for the reason that the Governor acts only upon the aid and advice of the Council of Ministers. If this was not the case, democracy itself would be in peril. The Governor is not answerable to either the House of the State or to Parliament or even to the Council of Ministers, and his/her acts cannot be subject to judicial review. In such a situation unless he/she acts upon the aid and advice of the Council of Ministers, he/she will become all powerful, and this is an antithesis to the concept of democracy.”

In other words the SC has argued that the Governor cannot be a sovereign entity accountable to none. Earlier in the Dr Raghulal Tilak case (1979) the SC had ruled that in no manner was the Governor ‘subordinate or subservient’ to the Union Government. Obviously the Governor will not be a sovereign entity if accountable to the President who appoints the Governor.

The SC in its recent judgment failed to state this. Why?

Possibly because by an earlier flawed judgment of the SC the President was deemed to be only “a titular head”. The judgment was delivered in the Shamsher Singh versus the State of Punjab Case in 1974. The logic advanced by the Court to justify that decision was totally unconvincing. There is nothing in the Constitution to justify the interpretation that the President is a titular head akin to the British Sovereign.
 
This issue had been convincingly thrashed between India’s first President Dr. Rajendra Prasad and Prime Minister Nehru through correspondence. Prasad was right and Nehru was wrong but Nehru’s view prevailed. This writer has consistently argued against the notion that the President is a titular head and has held that unless this flawed Constitutional interpretation upheld by the SC is rectified India will continue to suffer from failure in governance.

The SC judgment on the Lokayukta therefore is incomplete. The judgment shies away from defining the relationship between the President and the Governor. The SC even in this most recent judgment has ruled that the Governor “is not answerable to either the House of the State or to Parliament or even to the Council of Ministers”. The SC had already ruled in the Raghulal Tilak Case that the Governor is not answerable to the Union Cabinet.

Then to whom is the Governor finally accountable?

I rest my case.