The relationship between the Governor and the Council of Ministers under the Constitution is important. In a landmark judgment by seven judges Supreme Court[i] explained everything on the subject. The leading judgment was delivered by Chief Justice Ray, Bhagawati and Justice Krishna Iyer. The separate judgment by Justice Krishna Iyer focused emphatic attention on the constitutional law of cabinet government. The quintessence of our parliamentary system consists of supremacy, although, in verbal wonder, the plenary executive head is President or the Governor as the case may be. Speaking on the judgment Justice Iyer speaks in his biography[ii] thus:
I specifically mention this case because a few days later both of us left for the USA because she had to undergo heart surgery. Her first surgery was unsuccessful and she was to undergo another one. At that time an officer from the Indian Embassy arrived with a letter from the Chief Justice of India, together with a copy of his draft judgment in the Shamsher Singh case. I was requested to either agree or to hand over my dissenting judgment if any. ‘We can’t wait for more, a few months having already passed,’ wrote Chief Justice Ray. In anguish over my wife, I wrote just two words. ‘I agree’. The officer took the papers to be dispatched to the Chief Justice in Delhi. My wife undisturbed by her dim prospects inquired about what I had signed. I explained to her my consent to the draft of the Chief. She disagreed with me and said that my draft judgment was an excellent piece and would become a constitutional authority. She insisted that it should be delivered. I agreed with her and called my close friend Justice Bhagwati who had also been on the Bench with me from the hospital. I persuaded him to get my draft opinion from Chandramouli and deliver the opinion as our separate judgment if he agreed with my view. Brother Bhagwati agreed and delivered our joint opinion. My Shamsher Singh opinion remains an authority till date. Alas! My wife passed away the next day during the surgery but her sound advice to me accounts for my pronouncement in the Shamsher Singh case.
The great constitutional savant Seervai, who never missed an opportunity to criticize my judgments and my English, did make an exception while commenting on my separate opinion in the Shamsher Singh case and observed in his classic work on the Constitution.
Though there is no flaw in the methodology of interviews, indeed, cases arise where the art of interviewing candidates deteriorates from strategy to stratagem and undetectable manipulation of results is achieved by remote control tactics masked as viva voce tests.
To those who are not put off by a highly ornamental and emotional style of legal exposition, the concurring judgment of Krishna Iyer J, makes interesting reading. Stripped of ornament and emotion the judgment comes to this Krishna Iyer J, agreed with Ray C.L. that under our Constitution the President and the Governors are constitutional heads of government since the Constitution has adopted a Cabinet or parliamentary form of government. This is clear from the opening paragraph of his judgment:
“These two appeals, by a couple of small judicial officers whose probation has been terminated by orders of concerned Ministers in conformity with the recommendations of the High Court, have projected constitutional issues whose profound import and broad impact, if accepted, may shake up or re-shape the parliamentary cornerstone of our nation. Great deference and complete concurrence would have otherwise left us merely to say ‘we agree’ to what has fallen from the learned Chief Justice just now, but when basic principles are assailed with textual support, academic backing and judicial dicta, speech, not silence, is our option.”
The “thesis” of the judgment is:
“Not the Potomac, but the Thames, fertilizes the flow of the Yamuna, if we may adopt riverine imagery. In this thesis, we are fortified by precedents of this court, strengthened by Constituent Assembly proceedings and reinforced by the actual working of the organs involved for about a ‘silver jubilee’ span of time.”
Following the sound advice to translate the out-of-the-way into every day, the thesis of the judgment is that judicial precedents, debates in the Constituent Assembly and the actual working of our Constitution for nearly twenty-five years, show that our Constitution has adopted the British Parliamentary and Cabinet form of government, as opposed to the Presidential form of government adopted in the United States Constitution, so that the President of India and the Governors of the States are, like the sovereign of the United Kingdom, constitutional heads of government.
[i] Shamsher Singh and Anr Versus State of Punjab. AIR 1974 SC 2192: 1974 (2) SCC 831.
[ii] Wandering in Many Worlds- Autobiography by Justice.V.R.Krishan Iyer, Dorling Kindersley (India) Pvt. Ltd, First Impression 2009.