Issue 21

LegalThirst

THE BRIEF

LEGAL
EDITORIALS
NEWS
JUDGEMENTS
 LegalThirst

THE BRIEF
8th January, 2024

www.legalthirst.com
E-commerce
platforms must
protect IP rights,
and they cannot
claim ‘safe harbour;
Delhi High Court

On reading the very exhaustive

Court said that merely because
and learned judgments on
there is no law prohibiting
Kashmir recently handed down
by a constitution bench of five
adultery does not mean that
judges, my regret has been that
people can marry other persons
there was no dissent- Fali S
Nariman in secrecy during the subsistence
Delhi High Court says of first marriage
no issue if only
government schemes Right to dignity override Right to
are promoted and not Privacy of parents
The right to root search, is implicit in the right of
political party the petitioner to know himself and to live a life of
dignity, an integral part of which is to know one's
identity. Hence, the right to know the identity of
one's biological parents is a part of the right to
life as enshrined in Article 21 of the Constitution
of India

Erosion of identity of women in

families in whatever capacity is
eventually going to lead to
breakdown of marriage. Behind
every successful man, there has
to be a family. There cannot be
subordination of women in a
marriage- Justice BV
Nagarathna
Supreme Court
dismisses PIL for
removal of Shahi
Idgah mosque
On reading the very exhaustive
and learned judgments on
Kashmir recently handed down
by a constitution bench of five
judges, my regret has been that
there was no dissent- Fali S
Nariman
Information obtained from an
A family court is not bound by
accused not in “Formal” police
the technicalities of the Code of custody is deemed admissible as
Civil Procedure (CPC) and is evidence by the Supreme Court.
also well within its powers to
take into evidence any material Madras High Court- Removal of the uterus
whether or not such material after being diagnosed with ovarian cancer
fulfills the requirements of by wife cannot be termed as an act of
Indian Evidence Act, 1872 mental cruelty towards her husband
A family court is entitled to lay down
its own procedure as long as such
procedure is in consonance with the Unqualified persons should be
basic cannons of the jurisprudence
such as natural justice, good restrained from rendering medical
conscience and equity services and hoodwinking poor people
in rural areas- Karnataka High Court
Congress leader has
approached the Supreme
Court, challenging the
exclusion of the Chief Justice
of India (CJI) from the panel
responsible for selecting
Election Commissioners
GOVERNOR POWERS WILL BE A
GAME CHANGER FOR FEDERAL
DISPUTES
On November 20, the Supreme Court underscored that
Governors lack the discretion to withhold assent to Bills when
the State Legislative Assembly repasses them. The court's
decision was a response to a petition filed by the Tamil Nadu
government, accusing Governor R.N. Ravi of creating a
constitutional impasse by delaying or refusing to consider 12
crucial Bills passed by the State Assembly.
The Tamil Nadu government's grievance is not an isolated
case. Other non-BJP-ruled States, such as Kerala and Punjab,
have also expressed concerns about the overreach of Union-
appointed Governors. Kerala, in a separate petition,
highlighted that eight of its proposed laws have been pending
with the Governor for years. Punjab, on the other hand,
claimed that the Governor has been sitting on seven of its Bills
since June. Notably, Telangana's Governor only cleared Bills
pending since September 2022 following the Supreme Court's
intervention in April.

Constitutional Provisions:
Article 153 stipulates that each State shall have a Governor, with the possibility of one
person being appointed as Governor for two or more States. The appointment is made
by the President and is a nomination by the Central Government.
The Governor assumes a dual role, serving as both the constitutional head of the state
and being bound by the advice of the council of ministers (CoM). Additionally, the
Governor functions as a crucial link between the Union Government and the State
Government.
Eligibility requirements for the post of Governor are outlined in Articles 157 and 158.
Under Article 161, the Governor possesses the power to grant pardons, reprieves, etc.
There exists a council of ministers (CoM) with the Chief Minister (CM) at the helm,
assisting and advising the Governor in the exercise of their functions, except in certain
conditions where discretion is allowed (Article 163).
The Governor appoints the Chief Minister and other Ministers in accordance with
Article 164.
Article 200 grants the Governor the authority to assent to, withhold assent from, or
reserve for the consideration of the President any bill passed by the Legislative
Assembly.
In certain circumstances, the Governor may promulgate Ordinances, as specified in
Article 213.
Why in Dispute?
1. Abuse of Power by the Centre: The Governor's position has been mired in
controversy due to instances of abuse, often orchestrated by the ruling party at the
Centre. The flawed process of appointment is frequently identified as the root cause.
2. Biased Ideology: The appointment of individuals with strong political affiliations has
raised concerns, with politicians and former bureaucrats aligning with specific
ideologies being chosen as Governors. This departure from the constitutionally
mandated neutral stance has led to perceived bias, exemplified in instances such as
Karnataka and Goa.
3. Puppet Rulers: Recent allegations against the Governor of Rajasthan include a
violation of the model code of conduct, with accusations of unwarranted support for
the central ruling party. Such actions contradict the expected non-partisanship
associated with constitutional posts, leading to negative descriptors like "agent of the
Centre," "Puppet," and "rubber stamp."
4. Favouring a Particular Political Party: The Governor's discretionary powers,
especially in inviting the leader of the largest party/alliance to form the government
post-election, have been susceptible to misuse. Instances of favoritism towards a
specific political party have raised concerns about the impartiality of the Governor's
role.
5. Misuse of Power: The Governor's recommendation for President's Rule (Article 356)
in a state has not always been grounded in 'objective material' but influenced by
political whims. The subjective use of power has raised questions about the validity
of such recommendations, veering away from the intended purpose of maintaining
constitutional balance.

Certain Recommendations:

1. The "Punchhi Commission - 2010" suggested that the state legislature should have
the power to impeach the governor. It recommended that the state chief minister
should play a role in the appointment of the governor.
2. On the Use of Article 356: The "Punchhi Commission - 2010" proposed amendments
to Articles 355 and 356.
3. The Sarkaria Commission (1988) suggested that Article 356 should be used only in
rare cases when there is no other option to fix the breakdown of constitutional
machinery in the State.
4. Similar recommendations were made by the Administrative Reforms Commission
(1968), Rajamannar Committee (1971), and Justice V. Chelliah Commission (2002).

On Dismissal of State Government under Article 356:

1. The S.R. Bommai Judgment (1994) concluded that the arbitrary dismissal of State
governments by a hostile Central government should stop. The judgment
emphasized that the majority of the government in the Assembly should be tested on
the floor, not based on the subjective opinion of the Governor.
Why in Dispute?
On Discretionary Powers:
1. In the Nabam Rebia judgment (2016), the Supreme Court clarified that the
Governor's exercise of discretion under Article 163 is limited. The Governor's choices
should not be arbitrary or fanciful.
thank
you
for reading