Only Independent Functionary Must Be Appointed Governor, Not The Kind We Have In Kerala: Justice Rohinton Nariman Targets Governor Arif Mohammed Khan

Retired Judge of the Supreme Court, Justice Rohinton Nariman today said that he is waiting for the day when the Supreme Court will hold that it is only independent functionaries who should fill the offices of Governors and "not the kind of people we find today, like we have in Kerala, for example". 

Justice Nariman was delivering the Bansari Sheth lecture in Mumbai when he made the remarks. He was speaking on the subject "Constitution-Check And Balances".

"I am waiting for the day when the Supreme Court will lay down that it is only independent functionaries who are supposed to fill these great offices. Not the kind of people that we find today, like we have in Kerala, for example", Justice Nariman said. He said that in Kerala, after sleeping over the bills, the bills have been given to the President in wholesale by the Governor. 

He said that since there are many constitutional protections available for the Governors, only independent persons should be appointed to that post. "Because he has two very important functions in his own discretion, which is apart from various other functions. One is what I just told you about, how he assents to bills. The other is equally important since he has to send a report under Article 356 to the Centre if there is a constitutional breakdown in the state. Now if you have a Governor who happens to be part of your political party, who has just been kicked up for no other reason but that he should be somehow rewarded, then obviously you are not going to get an independent assessment under either Article 356 or under Article 200. So the scheme qua Governors is also fraught with a lot of difficulties", he said.

Justice Nariman termed the Judgment of the Supreme Court in the 2019 BK Pavitra's case, which held that there is no constraint on the Governor to refer a bill to the President "unfortunate". "According to me this again requires a revisit", he said.    

"It is important for the federal system to work for the Supreme Court to say in unmistakable terms that this bill is going to ultimately find its death at the President's door. Because if the President says no, that is the end of the matter. Only such bills that impact the nation as a whole that requires to be sent, and not others, or which impacts the judiciary", he said.   

Justice Nariman also said that the new bill on appointment of the Election Commissioner should be struck down by the Supreme Court for the asking.

Justice Nariman said that the Supreme Court's judgment on the appointment of the Election Commissioner was based on what the Parliament itself had done for the appointment of the CBI Director. He said that the said judgment was "subverted instantly" by passing the bill which will become an Act in no time.

"You will have two from the Executive, Prime Minister and Minister against the Leader of the Opposition, which is two to one always. And out goes the Election Commission. So there is not much point in saying that you are going to appoint a person, when you are not sure he is going to be independent. But give him the tenure of 5 years and that he can be removed only like a Supreme Court judge. .....We have to see now how our Court reacts when this bill becomes an Act and I am certain that it is going to be challenged. According to me, it should be struck down for the asking as an arbitrary piece of legislation because it severely imperils the independence of the Election Commission", Justice Nariman said.