Analysis

This Governor Won’t March!

Uttarakhand Governor Mr. Aziz Qureshi has petitioned the Supreme Court (SC) against his removal demanded by the Home Secretary. Article 156 of the Constitution states that the Governor holds his office during the pleasure of the President. Mr. Qureshi questioned how the government could remove him through a secretary’s order without the President’s formal approval. The Supreme Court has sought the government’s response to the petition within the next six weeks. One hopes the SC addresses this issue to settle the contradictions related to the subject once and for all. If that were done our understanding of the President’s role would also be revised.

The SC has passed flawed and contradictory judgments in the past. What is worse, there are glaring contradictions within the Constitution itself which render our democracy farcical.

In the Dr Raghulal Tilak case (1979) the SC ruled that the Governor in no manner can be “subordinate or subservient” to the Union cabinet. That would make the Governor accountable to the President who formally appoints him. Therefore the Governor obviously functions under orders of the President. Eminent jurist late Nani Palkhiwala relied on this ruling to dispute the dismissal of former Tamil Nadu Governor Prabhudas Patwari.

However in the SC ruling in the Shamasher Singh versus the State of Punjab Case (1974) the President is described as a titular head. The SC ruled:

“It is clear from article 74(1) that it is the function of the Council of Ministers to advise the President over the whole of the Central field. Nothing is left to his discretion.”

This ruling preceded the 42nd Amendment to the Constitution which made it mandatory for the President to follow the advice of the Cabinet. Originally Article 74 (1) stated:

“There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President.”

This was wrongly interpreted by Pandit Nehru and accepted by the nation to mean that the President was bound by that advice. This interpretation of the text was nonsensical. That is why Indira Gandhi introduced the 42nd Amendment during the Emergency to specify in that same Article that the President would act “in accordance with such advice”. Yet the SC even before the 42nd Amendment ruled that the President was bound by that advice!

Despite Article 74(1) after the 42nd Amendment there still remains confusion about the President’s powers thanks to the negligence of our jurists. Article 53(1) of the Constitution states:

“The executive power of the Union shall be vested in the President, and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.”

What should be believed and followed, Article 74(1) or Article 53(1)? The powers related to the President in both Articles are diametrically different. Yet this confusion continues to abound in the world’s longest and most frequently amended constitution. One hopes the SC addresses this issue in depth taking advantage of Governor Qureshi’s petition to end all confusion.

11-Sep-2014

More by :  Dr. Rajinder Puri

Top | Analysis

Views: 3349      Comments: 1



Comment If we carefully read the language of both the articles...the difference is very clear between the two.

The article 74(1) as it originally says that you quoted above, simply means-

"Council of ministers headed by Prime minister may aid and advice the President. (The article does not say, that they can compell the President to execute as per their aid & advice)

and the Article 53(1) says - "The power of execution of law fully and unconditionally guaranteed as a legal right to the President... and he has all powers to exercise it directly or through his officers subbordinates to him in accordance with this constitution.

So, hope SC clears all confusion by practicing the exact message that lies in above Articles to ensure real justice, and strengthen the faith of people in Indian judiciary system.

Farhat Farooqui
12-Sep-2014 07:09 AM




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