Kerala: Pinarayi Government moves Supreme Court against Governor Arif Mohammed Khan, alleging delay in bill approval

In an unprecedented move, the Government of Kerala under the CPM-led Left Democratic Front (LDF) has filed a petition with the Supreme Court on March 23, 2024, against Governor Dr Arif Mohammed Khan. The Government alleges that the Governor has been withholding several Bills forwarded by the legislative assembly for an extended period.

The contention arises from the delay in the Governor’s assent to these Bills, with the government asserting that they should receive time-bound approval to uphold the legislative assembly’s right to enact laws. The Governor has been named as a respondent in the petition.

This action follows a previous instance where the Kerala Government approached the Supreme Court regarding the Governor’s delay in approving Bills. Subsequently, the Governor sent seven Bills for consideration by the President of India, of which one, the Lokayukta Bill, received endorsement. However, the President rejected four Bills, while two remain pending approval.

1. Bill to strip the Governor of the power of Chancellor of the universities in the State.
2. Bill to expand the Search Committee to select the Vice Chancellor
3. Bill to keep the Governor out and empower the Government to appoint Appellate Tribunal
4. Bill to ‘capture’ the control of Milma (Kerala Co-operative Milk Marketing Federation)

Advocate K. Ramkumar, a prominent legal expert and political commentator, emphasized to this correspondent that according to Article 361 of the Constitution of India, neither the President nor the Governor of a State can be held accountable to any court for their actions or decisions made in the course of their official duties. This provision extends to acts performed or purportedly performed by them in the exercise of their powers and responsibilities.

Constitutional Safeguards for Presidents, Governors, and Rajpramukhs

1. The President, Governors, and Rajpramukhs of States are immune from legal proceedings for their actions or decisions made in the course of their official duties. However, the conduct of the President can be reviewed by a court, tribunal, or body appointed by either House of Parliament for investigations under Article 61. This provision does not restrict individuals from bringing appropriate proceedings against the Government of India or a State Government.
2. No criminal proceedings can be initiated or continued against the President or Governors during their term of office.
3. Courts are prohibited from issuing processes for the arrest or imprisonment of the President or Governors during their term of office.
4. Civil proceedings seeking relief against the President or Governors cannot be initiated during their term of office. However, such proceedings may commence after a notice outlining the nature of the proceedings, cause of action, and other relevant details is delivered to the President or Governor, with a waiting period of two months before initiating the proceedings.

Renowned lawyer and political commentator, Adv. Jayashankar, expressed to Organiser that if a state government were to approach the Supreme Court against the President of the country, such a legal action would likely not succeed. He suggested that the state government may name the President’s secretary as the respondent instead. Jayashankar noted that only in cases involving compassion for individuals facing capital punishment might there be hope for relief. He cited the Supreme Court’s decision to commute the death penalty of Rajiv Gandhi’s killers to life imprisonment due to an 11-year delay in deciding their clemency petition.

This delay spared Santhan, Murugan, and Perarivalan from execution. Despite the Centre’s submission, the bench, led by Chief Justice P Sathasivam, rejected the claim of unreasonable delay in deciding the mercy plea. Jayashankar emphasized that the President is afforded immunity under Article 361 of the Constitution. Regarding the specific case at hand, Jayashankar suggested adopting a wait-and-see approach.

Union Minister V Muraleedharan, BJP candidate for the Attingal Lok Sabha constituency, denounced the Kerala government’s decision to approach the Supreme Court against the President, calling it unprecedented. He accused the Communist Party of India (Marxist) or CPM of being anti-President, anti-woman, and anti-tribal. Muraleedharan asserted that the people would reject the CPM’s attempt to insult the President, alleging that the Left Democratic Front (LDF) government misused funds meant for tribals, leading to unpaid scholarships and other welfare issues.

In contrast, the Congress party’s stance aligns with that of the ruling LDF. Mohammed Shiyas, senior Congress leader and President of the Ernakulam District Congress Committee (DCC), argued that if bills are passed by the legislative assembly, governors are expected to endorse them. He opined that bills sent for the President’s approval should not be contested.

Critics highlight the government’s struggle to meet its financial obligations, including timely salary payments, pensions for government employees and senior citizens, and funding for essential services like police vehicles and fuel. The decision to engage veteran lawyers for the Supreme Court case is seen as an added financial burden on taxpayers, deemed unnecessary political maneuvering by some.