Former Kerala Governor P. Sathasivam, a retired Chief Justice of India, on Monday said normally the State government may as a form of “courtesy” apprise the Governor in advance before challenging an important legislation in court.
Speaking to The Hindu , Justice Sathasivam said the courtesy may be extended to the Governor as he was the constitutional head of the State. “In case of an important legislation, normally the State government may apprise the Governor as a form of courtesy,” Justice Sathasivam said.
He was speaking in the context of the recent controversy concerning the Kerala government’s move to challenge the Citizenship (Amendment) Act , 2019. Kerala Governor Arif Khan has sought a report from the State government on why it chose to sue the Centre in the Supreme Court under Article 131 without first informing him.
But jurists say there is no constitutional requirement for a State to inform the Governor about its executive decision to file a case.
“There is no such constitutional convention. This is a suit the State has filed against the Centre. The Governor is the representative of the Union. Why should he be consulted before-hand? He cannot go beyond what the Ministry of Home Affairs anyway,” former Attorney- General K. Parasaran said.
Senior advocate K.V. Vishwanathan refers to the Supreme Court judgment in the Shamsher Singh case, which holds that the “Governor is not a rival centre of power” in a State.
“The Shamsher Singh judgment said he [Governor] is a formal head. The real executive powers are vested in the Council of Ministers who are collectively responsible to the legislature. Even Article 167, under which information is sought by the Governor [from the Chief Minister], does not have dictatorial overtones as the Sarkaria Commission on Centre-State relations has held... Kerala’s suit will stand or fall on its own merits and not because of want of sanction from the Governor,” Mr. Vishwanathan said.
Senior advocate Gopal Sankaranarayanan said the Governor need not be consulted before filing an Article 131 suit just as he is not consulted for the thousands of cases that the State files every year.
“It is not a gubernatorial prerogative to be consulted or informed in advance about a purely executive decision to litigate,” Mr. Sankaranarayanan said.