Review of the System:

While Anna Hazare’s demand for the right of the Jan Lokpal to appoint Lokayuktas in various States is pending, an interesting development has occurred. Gujarat Governor Kamla Beniwal has departed from tradition to appoint a Lokayukta in Gujarat overriding the Gujarat government which had failed to do so for the past seven years. The Gujarat government has appealed against the Governor’s decision in the Gujarat High Court, calling it unconstitutional. The Governor justified her appointment by stating: “Although generally the Governor acts as per the aid and advice of the council of ministers headed by the CM, there might be circumstances where the Governor cannot remain a mute spectator to the happenings in the state, and is compelled to use discretion.”

The Governor’s decision could have very far reaching implications. Clearly the Governor believes that she is not bound by the advice of the council of ministers in each and every issue. The Gujarat government’s spokesperson Mr. Jayarayan Vyas conceded that the Gujarat Lok Ayukta Act empowered the Governor to appoint the Lokayukta. However, he added, “this rule had to be read with the provisions under the Constitution, which say that the Governor is bound to act as per the suggestion of the council of ministers, except under the exceptional circumstances.” 

The Gujarat government’s Advocate General Mr. Kamal Trivedi invoked Article 154 of the Constitution to support the government spokesperson’s argument. Article 154 states: 

1) “The executive power of the State shall be vested in the Governor and shall be exercise by him either directly or through officers subordinate to him in accordance with the Constitution.  2) Nothing in this Article shall – (a) be deemed to transfer to the Governor any function conferred by any existing law or any other authority; or (b) prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor.” 

This Article clearly demarcates the executive power of the Governor from the legislative powers of the Assembly. 

But then who must determine whether exceptional circumstances warranted the Gujarat Governor to override the Council of Ministers? To whom is the Governor finally accountable? Not being a sovereign entity the Governor is finally accountable to the central government. Does the union cabinet therefore have the final say in determining whether the Gujarat Governor acted rightly? Not quite. In the Dr Raghulal Tilak case (1979) the Supreme Court ruled that in no manner was the Governor 'subordinate or subservient' to the Union Government. The Governor therefore is subservient to the President of India who appoints the Governor. However, in the Samsher Singh case (1974) the Supreme Court ruled that the cabinet's 'aid and advice' tendered to the President shall be binding. 

These two rulings contradict each other. Believing both rulings to be infallible would render the Governor as a sovereign entity accountable to none. By convention when two rulings contradict each other the latter ruling prevails. The Governor therefore is accountable to the President who appoints him. Thereby the President should have discretion to appoint the Governor of his choice to ensure that law and Constitution are maintained in the governance of the state. 

This implies that the President like the Governor is not bound by the advice of the council of ministers in each and every issue. Indeed the President’s role described in Article 53 is identical to the role of the Governor as described in Article 154 except for the introduction of the 43rd Amendment during the Emergency by which the President must “act in accordance with such (tendered by the council of ministers) advice”. If the Gujarat High Court upholds the Governor’s decision to override the council of ministers, surely the President is entitled to exercise the same power in the centre as the Governor does in the state? 

That is why Mr. Rahul Gandhi’s claim that his proposal to convert the Lokpal into a constitutional body would be a game changer might well exceed his wildest imagination. Mr. TN Seshan’s opinion that the Lokpal as a constitutional body would be accountable to Parliament does not necessarily hold. If the High Court considers the Gujarat Governor’s decision legally valid, it would be the President of India to whom Mr. Gandhi’s version of the Lokpal, and indeed all other constitutional bodies, would be accountable. 

Has the Gujarat Governor inadvertently opened the door to a serious review of the President’s role as this writer has consistently advocated?