Justice K. Chandru: ‘Governor is not umpire or referee’

The former Madras High Court judge spoke on the power equations between a Governor and the State government.

Justice K. Chandru (retd), of the Madras High Court. | Photo Credit: B. JOTHI RAMALINGAM

An acrimonious confrontation between Tamil Nadu Governor R.N. Ravi and the DMK-led State government over long-pending Bills, including one banning online gambling, amid resolutions passed by the legislature, has once again brought into focus how differences between constitutional and elected heads of a State could disturb a functional democracy. After a four-month delay, Ravi gave his assent to the Bill banning online gambling on April 10, the same day the Tamil Nadu Assembly condemned him through a resolution.

The entire affair has also opened up a serious debate on whether the Governor transgressed his constitutional responsibility and ethical probity and if so, how and where.

In an interview to Frontline, Justice K. Chandru (retd) of the Madras High Court spoke on the power equations between a Governor and the State government. Excerpts:

In a democracy, constitutional heads have to play a constructive role. In this context, was Governor Ravi’s returning of the Bill banning online gambling justifiable?

Article 200 of the Constitution, which delineates the power of the Governor to grant assent, clearly states that the Governor should give his assent “as soon as possible” and can return it with a message for the House to reconsider it. Of late, Governors of States in which opposition parties are in power are making it a point to delay granting their assent, thereby creating a constitutional deadlock.

The Governor is sitting over as many as 20 Bills passed by the Tamil Nadu legislature. The fate of the NEET exemption Bill is well known. It is only after a case was filed in the Supreme Court that the Governor quickly sent it to the President’s consideration. Already, Tamil Nadu has filed a suit before the Supreme Court under Article 131 challenging the validity of the NEET law.

The K. Chandrashekar Rao-led government in Telangana had moved the Supreme Court against the Governor’s refusal to give assent to a Bill. When Punjab Governor Banwarilal Purohit delayed convening of the Punjab legislature, a case was filed before the Supreme Court, and the Chief Justice of India apparently remarked that it was not the business of Governors to delay matters on the specious plea of getting legal opinion.

It was Governor Ravi who agreed to the promulgation of an ordinance banning online gambling. And ironically, it was he who refused to sign a Bill that would have made it a law. How do you interpret this contradiction? Has he transgressed his constitutional responsibility?

In the case of legislation banning online gambling (including rummy), the issue is totally different. The Governor agreed for the promulgation of the Tamil Nadu Prohibition of Online Gambling and Regulation of Online Games Ordinance, which came into force on October 3, 2022.

The ordinance would lapse if it was not converted into an Act within six weeks by the House. Hence, the legislature was convened and it passed the Bill in place of the ordinance and sent it to the Governor for assent. But he not only sat on the Bill for over four months but returned it after raising several objections, including its constitutional validity and the locus standi of the House in passing it.

The executive power of the state under Article 162 is co-extensive with the power of the legislature. What is strange is the Governor who promulgated the ordinance refusing to give assent to the Bill, which carried the same text as the ordinance. Therefore, his delaying for four months and raising a whole lot of objections was not only mala fide, but also done with ulterior motives so as to embarrass the State government, which represents the will of the people.

It was also understood that the Governor is not the umpire or a referee in the game of to be or not to be. He should not interfere in the legislative powers of the Assembly. On the other hand, even when assent was given to legislation in the past, it was questioned in the courts on grounds of constitutionality.

At a protest by against online gambling by activists who also urged Tamil Nadu Governor R.N. Ravi to clear the Bill on it, in Chennai on March 17, 2023. | Photo Credit: S.R. RAGHUNATHAN

The Governor claims that online gambling falls under the exclusive domain of the Central government since it is in cyberspace. Do you agree with his view that the State has no legislative competence to enact a law on this subject? If yes, who is the competent authority to do so?

The Governor’s message dated March 6, while returning the Bill, containing as many as 12 pages, were replied to by the State government point by point. The fresh Bill was passed unanimously once again by the legislature and sent for his assent. Under the law, he has no option but to grant assent to the Bill.

On the contrary, the Governor has opined that the matter will not come under the purview of the State and that the matter is also covered by List I dealing with information technology.

Entry 34 of List II provides for subjects under which State legislatures can legislate on in the area of “gambling and betting”. A law passed earlier by the former AIADMK government was questioned before the Madras High Court, which held that rummy was a game of skill and not chance and therefore it cannot be brought within the subject head of gambling.

But the same court also observed that its judgment would not prevent the State legislature from bringing a new legislation in accordance with the law.

When the court has given the liberty, why is Governor Ravi now saying there is no power for the State? No one has gone into many other issues of betting involved in the so-called skill game of rummy.

Does this act of the Governor trespass into the realm of an elected government, thus upsetting the ethical and constitutional balance needed for the seamless functioning of the State?

The action of Governor Ravi does not stand in isolation. There seems to be a pattern in Tamil Nadu, Kerala, Telangana, and Punjab, where opposition parties are in power. Governors are now being used as a trojan horse to destabilise elected State governments. They [Central government] have chosen three specific areas to give pinpricks to elected governments.

First, the delay in granting assent to Bills, and second, interfering in university administration and in the matter of appointment of chancellors. Thirdly, Governors are freely airing their views in public which is not only in conflict with the standpoint of the State governments but also shows blatant identification with the Hindutva politics advocated by the BJP and the rest of the Sangh Parivar.

Governor Ravi also met with representatives of the online gaming industry. The Madras High Court too had ruled that a blanket ban on the “game of skill” violated Article 19 (1)(g) of the Constitution. Against this backdrop, do you find any validity in the claim that the Governor acted unethically?

The order passed by the Madras High Court has been challenged and the Supreme Court had given leave on September 9, 2022. Notice also has been issued to the parties concerned. Petitions challenging similar judgments of the Karnataka High Court and the Kerala High Court are also to be heard together.

There is a chance for reversing all the three High Court decisions and ensuring the power of the State to interfere with online games, including online rummy. While the game of rummy is held to be based on skill, online rummy is not the same. The programmes developed by the online rummy companies are not transparent and the results are predetermined. The experience so far has shown that it is always the player who loses the money and there are enough companies which induce them to keep playing, promising easy loans through online transfers.

The question of claiming protection under Article 19(1)(g) does not arise as an absolute right since it is circumscribed by Article 19(6) wherein the State can make a law in the interests of the general public, with reasonable restrictions on the exercise of the right conferred by the said sub-clause.

Highlights

• Of late, Governors of States in which opposition parties are in power are making it a point to delay granting their assent, thereby creating a constitutional deadlock, said Justice (retd) Chandru.
• According to him, Governors should not interfere in the legislative powers of the Assembly.
• Justice Chandru also said that Governors were now being used as a trojan horse to destabilise elected State governments.

Some people think that the Governor should have sought legal opinions from the Central government, especially the Ministry of Electronics and Information and Technology. Do you agree?

The Governor, while considering the grant of assent, can consult with anyone. But he cannot undermine the collective wisdom of the legislature and that of the government, which is always advised by the Advocate General of the State and the law department with enough experience in law-making.

The Central government is contemplating enacting a law to regulate the online gaming industry, as States do not have adequate powers and expertise either to block or restrain rogue apps and sites that operate from overseas. Could that be the reason why Governor Ravi desisted from giving his assent?

So far the Central government has not addressed the issue from the ground level. They have only attempted to consider regulating the industry and prohibiting advertisements in this regard.

The only advice given by the Central government was also noted in our report [of the Tamil Nadu government’s four-member committee headed by Justice K. Chandru on online rummy] wherein they have suggested that the affected party can move the consumer courts if there are any deficiencies in the games promoted by online companies.

At the same time, at least four States have attempted to ban such games. The Telangana law is pending before the High Court. Our committee also suggested that the Central government can be approached under Article 252 for enacting a uniform Central law. But considering the volume of tax revenue earned by the Centre as well as the money pumped in towards election expenditure, it is unlikely that the Centre will consider bringing a law banning online rummy.

Despite Supreme Court judgments on the Governor’s powers, Governors like Ravi continue to take a confrontational attitude against the State. Will it not weaken the constitutional order and impede the State’s functioning?

On the question of functioning of Governors, including the power to grant reprieve for prisoners, the Supreme Court has time and again said that the Governor must take advice from the Council of Ministers headed by the Chief Minister before he acts.

There may be grey areas where the Governor, being the chancellor of the State universities, could have certain discretionary powers in the matter relating to the selection of vice chancellors and call for explanation from the universities. Even there, no monarchical system of functioning is encouraged since the Governor is only an ex officio statutory appointee.

It is open to the State government to appoint some other person as chancellor in the place of the Governor. It is not a constitutional function, only a statutory function, where the Governor’s action can be questioned before the higher judiciary.

Unfortunately, the Madras High Court has not laid down the correct law whereas the Kerala High Court has, in the recent past, on more than three occasions struck down orders of the Governor. They must know that many of the law universities have local Chief Justices or the Chief Justice of India as the chancellor.

Therefore, the Governor sitting over the Bills amending the existing university laws too is totally biased. Every time a Governor sits over a Bill passed by the legislature, he is acting undemocratically and violating the basic structure of the Constitution.

The Constituent Assembly was aware of the low value of the Governor’s post and also the fact that they function at the President’s pleasure, meaning they can be removed at will. Hence, it did not prescribe any power of impeachment to the State legislature for removing the Governor from the post. Dr B.R. Ambedkar said that the post was so unattractive that no one would come forward for it. In fact, the post of Governor requires the least number of qualifications under the Constitution: the person must be a citizen of India and must be above 35 years old.