• Constitutional morality requires filling in constitutional silences to enhance and complete the spirit of the Constitution. A Constitution can establish a structure of government, but how these structures work rests upon the fulcrum of constitutional values. Constitutional morality purports to stop the past from tearing the soul of the nation apart by acting as a guiding basis to settle constitutional disputes:

“Of necessity, constitutions are unfinished. What is explicit in the text rests on implicit understandings; what is stated rests on what is unstated.”

• Constitutional morality provides a principled understanding for unfolding the work of governance. It is a compass to hold in troubled waters. It specifies norms for institutions to survive and an expectation of behaviour that will meet not just the text but the soul of the Constitution. Our expectations may be well ahead of reality. But a sense of constitutional morality, drawn from the values of that document, enables us to hold to account our institutions and those who preside over their destinies. Constitutional interpretation, therefore, must flow from constitutional morality.

Issue related to Article 164(1)

• Under the Constitutional scheme, the Governor appoints the Chief Minister who, in turn, advises the Governor to appoint the Council of Ministers. According to Article 164(1) of the Constitution, 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.   However, the problem arises from the fact that the Constitution does not provide any guidelines as to how the Governor should function in case no party or alliance wins a clear majority during the election. There, therefore, exists constitutional silence. Further, there exist no guidelines from other sources to resolve the issue in case of a fractured mandate.

Issue related to Article 200

No Time Limit

• Article 200 does not provide any time limit for governor for granting the assent or withholding his assent or reserving it for the assent of the President.

Purshothaman v. State of Kerala (1962)

• Constitution Bench of the Supreme Court clarified that the Constitution does not impose any time limit within which the Governor should provide assent to Bills.
• However, Governor must honour the will of the Legislature and that the President or a Governor can act only in harmony with their Council of Ministers.

Hoechst Pharmaceuticals v. State of Bihar (1983)

• Supreme Court said that the Governor’s power to reserve for the consideration of the President cannot be questioned in court.

Provisions of Article 201 of Constitution

• Where a Bill is reserved by a Governor for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent therefrom.
• President is also empowered to direct the Governor to return the Bill to the House when the bill is not money bill.
• House or Houses shall reconsider it accordingly within a period of six months from the date.
• If it is again passed by the House with or without amendment, it shall be presented again to the President for his consideration.

Issues in Article 201

• It does not provide any time limit for president to give, withhold or return the bill.
• President is not acting swiftly to grant assent to the Bills reserved by the Governor for the consideration of the President cannot be missed.
• Example: National Eligibility cum Entrance Test (NEET)-exemption Bill passed by the Tamil Nadu Assembly.

Constitutional silences

• Modern jurisprudence on constitutional interpretation posits that constitutions are characterised by silences and abeyances as an inherent part. Constitutional silences posit that silences are indispensable, deliberate and implicit – these are incorporated though not mentioned in the text per se.   Historically, most of the modern constitutions were framed in the backdrop of revolutions and upheavals. Settling chaos and establishing an orderly society was the primary aim of the framers of the constitutions, rather than discussing contentious issues which could lead to a complete breakdown of society and polity. Thus, these constitutions are the result of trade-offs and it is clear that silences were also imposed upon the constitutions by the context in which they were framed.
• The Indian Constitution is no different in this respect. It was framed in the backdrop of Partition and consequently, the framers of the Constitution were very much concerned with the unity and integrity of the nation.

Governor’s post

• In this context, the framers of the Constitution felt that there was a dearth of competent legislators in the states and a certain amount of centralisation of power was necessary for nascent India. Therefore, silence as to the procedure to be by the Governor for the formation of the government was deliberate. It was expected by the members of the Constituent Assembly that Governors would act in a manner befitting their office and would be guided by constitutional morality. It was a move to protect Indian states from secessionist tendencies.
• The concept of constitutional morality has been further elaborated by the Supreme Court in its various judgements, in which the court has, most importantly, held that the value enshrined in the text when a holistic approach is adopted to the same is the essence of constitutional morality. In fact, constitutional morality is that fulcrum which acts as an essential check upon the functionaries as experience has shown that unbridled power, without any checks and balances, would result in a despotic situation, which is antithetical to the very idea of democracy.
• However, the concern of Babasaheb Ambedkar seems to be taking the shape of reality:  “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people are yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.”

Looking ahead

• Given that Governors have belied the hope of the framers of the Constitution that they would be guided by constitutional morality and would act in the interest of democracy, it is high time that the problem is resolved, because problems due to the office of the Governor are both continuing and real. One may argue that the problem is a case-to-case issue and the courts are adequately suited to deal with the issues. However, the mockery of democracy that is made every time cannot be resolved by the courts and the case-to-case basis approach cannot be the way out. Either a detailed guideline as to the procedure that the Governor should follow should be enacted or the power should be entrusted to the Chief Justice of India or Chief Justice of the concerned High Court.