ROLE OF GOVERNOR IN INDIA: CRITICAL ANALYSIS

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The office of Governor in India is meant to be an independent and apolitical institution under the Constitution of India. However, be it the Rajasthan political crisis of 2020 or the recently concluded West Bengal elections, the Governor has been in news for all the political reasons. It is due to the innumerable instances of misuse of the gubernatorial powers that the Governor has attracted infamous nicknames like ‘Puppet’, ‘rubber stamp’, and the ‘agent of the Centre’. In recent past, some of the Chief Ministers have even advocated for the abolition of the post of Governor. Seen in this context, the author in this article attempts to analyse the issues plaguing the office of Governor. The author, after giving a brief overview of the office of Governor, reviews the Constituent Assembly Debates on the subject to understand the intent of the framers of the Constitution regarding the creation of the post. Thereafter, the controversies relating to gubernatorial discretion along with Supreme Court’s judgments on the same are discussed. Some possible reforms are also discussed in this article.

OFFICE OF GOVERNOR: AN OVERVIEW

The office of Governor is a constitutional post established under Article 153 of the Constitution of India. Contained in Chapter II of Part VI of the Constitution, Article 153 mandates that there shall be a Governor for each state.[1]Appointed by the President of India, the Governor is known as the de jure head of a State. The executive powers of the State are vested in the Governor.[2] She exercises her constitutional functions under the aid and advice of the Council of Ministers unless the Constitution specifically requires her to apply her independent mind.[3] Some of the functions of the Governor involve, among others, summoning, proroguing and dissolving the state assemblies; promulgating Ordinances, assenting to Bills, and appointing the Chief Minister and his Council of Ministers.[4] The Governor also appoints, among others, the Advocate General of the state, the State Election Commissioner (SEC), State Information Commissioner (SIC), chairman and members of the State Human Rights Commission, and the State Public Service Commission. During the time of hung assembly, the Governor invites political parties to stake their claims to form the Government. The Governor also calls for Floor Test if he thinks that the Chief Minister has lost the confidence of the assembly. Certain powers, such as sending report to the President under Article 356, and reserving a Bill for the President’s consideration under Article 200, may be exercised at the discretion of the Governor.

Vested with such a wide array of powers, the Governor is required to ensure that the state functions in accordance with the Constitution of India. However, there have been numerous instances of misuse of these powers to favour the ruling party in the Union government. In light of these developments, it is significant to revisit the Constituent Assembly Debates on the position of Governor in India in order to understand the intent of the framers of the Constitution.

CONSTITUENT ASSEMBLY DEBATES ON THE POST OF GOVERNOR

Any discussion on the position of Governor in India is incomplete without revisiting the Constituent Assembly (Assembly) debates on this subject. The framers of the Constitution were sharply divided in their opinions on the position of Governor. Some of them were against the idea of keeping this position, which they thought was a relic of colonial past. Others, however, believed that it was necessary to have Governors to ensure smooth functioning of the newly formed provinces.

The primary disagreement arose on the matter of appointment of the Governor. The Draft Constitution (Draft) had provisions for an elected Governor.[5] However, there were two ways of electing the Governor suggested in the Draft, out of which one was to be finalized by the Assembly. During the debate, Shri Brajeshwar Prasad moved an amendment which provided for a Governor to be nominated by the President of India. This amendment was vociferously opposed by Shri Rohini Kumar Chaudhury and Shibban Lal Saxena. They contended that the nomination of Governor was against the principles of democracy and federalism. On the other hand, Shri H.V. Kamath, Jawaharlal Nehru, and K.M. Munshi, among others, were in favour of the amendment. They argued that an elected Governor would be at loggerheads with an elected Chief Minister thereby creating friction in the day-to-day functioning of the government. They also contended that the election of Governor would give rise to party-politics and eventually undermine the independence and apolitical nature of the post.[6] Eventually, Dr. Ambedkar favoured the nomination of Governor stating that it would be unwise to burden the exchequer with election expenses given the ornamental nature of the post with limited powers to interference in the internal administration of the state cabinet.[7]

The issue of removal of Governor also invoked conflicting opinions from the parliamentarians. After the adoption of nomination of Governor, the process of removal of Governor was also amended. Earlier, the Governor was to be removed by way of impeachment in the state assembly. However, after amendment moved by Dr. Ambedkar, she was to be removed at the pleasure of the President. Shri S.L. Saxena and Prof. K.T. Shah opposed this amendment warning that it would compromise the independence of the Governor and would leave her to the mercy of the President. However, the majority voted in favour of the amendment.

Another contentious issue was the bestowing of discretionary powers upon the Governor. Shri H.V. Kamath, and Pt. H.N. Kunzuru raised multiple objections regarding discretionary powers granted to a non-elected Governor. Shri Kamath tried in vain to move an amendment which sought to curtail these powers and effectively bind the Governor to follow the aid and advice of the Council of Ministers. In response to this amendment, Shri T.T. Krishnamachari of the Drafting committee stated that these discretionary gubernatorial powers were limited only to specific circumstances clearly enumerated in the Constitution. Shri A.K. Ayyar opined that these powers were meant for smooth functioning of the state in transitory phase or in the situations of exigencies.

Given the preceding discussion, it is obvious that the founding fathers were far from unanimous on the issue of appointment, removal and discretionary powers of the Governor. Nevertheless, the post of governor was vested with discretionary powers after a thorough debate in the Assembly. In order to appreciate the adoption of the post of Governor by the framers of the Constitution, it is important to understand the tumultuous political atmosphere of late forties in the wake of Partition of India. The preservation of the unity and integrity of a nascent India was the prime consideration at that time. Checking separatist provincial tendency was the need of the hour. According to Brajeshwar Prasad, granting large powers to the Governor though seemed undemocratic, was perfectly alright in the interest of the country.[8]

While such an argument would seem justified in the backdrop of a nascent Indian republic, subsequent changes in the socio-political atmosphere demands a relook into the issue. It is pertinent to reconsider whether or not we need the position of Governor with discretionary powers often misused to destabilise the elected governments. 

CONTROVERSIES RELATED TO GOVERNOR

With the advent of regional parties and coalition politics in India, the role of Governor has acquired immense importance in the current political scenario. The three major issues which have subjected the Governor to heavy criticism are its political appointments, uncertain tenure, and unchecked discretionary powers.

Appointment

The Governor was contemplated to be an apolitical and independent person by the framers of the Constitution. However, the process of appointment has never been apolitical. While the Governors are constitutionally appointed by the President, the apparent politicisation of this process has been extensively criticised. It is observed that ex-politicians with significant ties with the ruling party in the Centre are generally appointed as the head of the states. These appointees are ideologically entrenched to their previous political affiliations giving rise to frequent tussle between them and the elected state governments. Instead of applying their independent mind under the constitutional framework, their decisions are guided by the will of their political masters. The average age of Governors in India, which is above seventy years, is a testimony to the fact that the post of Governor has been used as a post retirement job for the veteran politicians.[9]

Tenure

The Governor remains in office during the pleasure of the President.[10] The President, however, is bound to follow the aid and advice of the Council of Ministers headed by the Prime Minister.[11] This effectively means that the tenure of Governor is at the mercy of the ruling party. There is always a possibility of removal of the Governor is she denies to act according to the wishes of the Centre. Thus, an insecure tenure compromises the independence of the Governor and incentivises pliant conduct.

Discretionary Powers

Article 163 of the Constitution of India recognises the discretionary powers to the Governor. Unlike the President who completely acts on the aid and advice of the Cabinet, the Governor exercises discretion in certain regards. This distinction was made clear by the Supreme Court (SC) in the Shamsher Singh v. State of Punjab[12] case, where it observed that,

“It is clear from A[rticle] 74(1) that it is the function of the Council of Ministers to advise the President over the whole of the Central field. Nothing is left to his discretion or excepted from that field by this article. By way of contrast, see A[rticle] 163 which is the corresponding provision for Governors and which expressly excepts certain matters in which the Governor is, by or under the constitution, required to act it (sic.) his discretion. There is no such exception in the case of the President.”[13]

The most controversial discretionary power is that conferred to the Governor under Article 356. The Governor has the power to send a report to the President of India informing her that the state can no longer be run in accordance with the Constitution of India. The President, if she is satisfied, can proclaim state emergency, i.e., President’s rule in the concerned state. This proclamation has to be ratified by both the Houses of the Parliament within two months. If it is not ratified, the proclamation lapses while if gets ratified by the Parliament, the emergency continues for a period of six months.

This power has been widely misused by successive Union governments in India. The report of the Governor has been used to dismiss the popularly elected state governments in the states. This misuse is not new and started right from the Nehruvian era. For instance, emergency was imposed in Punjab on 16th June, 1951, apparently because the then PM Jawaharlal Nehru had some differences with the CM of Punjab, Dr. Gopichand Bhargava. Consequently, the PM asked president Rajendra Prasad to proclaim emergency. Dr. Prasad expressed his disappointment in his autobiography stating that it was against the principles of the Constitution to suspend the state government when the constitutional apparatus of the state was in existence.[14] Similarly, the E.M.S. Namboodiripad government was dismissed in Kerela in 1957 based on the report of the Governor.

The trend of misusing the gubernatorial powers under article 174 is in vogue nowadays. Article 174 gives Governor the power to summon, prorogue and dissolve the House. Though this power is to be used on the aid and advice of the Cabinet, instances of Rajasthan in 2020 and Arunachal Pradesh in 2016 suggests that the ruling party at the Centre can take advantage through the Governor.  

It is due to such instances that the Supreme Court of India had to step in and limit the gubernatorial discretion. It is pertinent to analyse some of the landmark judgments of the SC in this regard to get a holistic understanding of the issue.

SUPREME COURT’S DECISIONS LIMITING GOVERNOR’S DISCRETION

One of the first major intervention of the Supreme Court came in the case of State of Rajasthan v. Union of India.[15] Indira Gandhi had lost the elections and the Janta Party alliance came into power in 1977. The Janta government issued a directive to the CMs of nine Congress ruled states to asking them to request their respective Governors to dissolve the Assemblies in light of the national mandate against Congress. The constitutionality of this directive was challenged in the Supreme Court in this caseIt was to be decided by the court whether or not the ‘subjective satisfaction’ of the President under Article 356 was immune to judicial review. Though the court answered in negative, it held that the decision of emergency can be judicially reviewed if questions of constitutional determination arise. Justice Bhagwati in his opinion stated that the ‘subjective satisfaction’ should not be premised on mala fide and irrelevant factors.

The most significant intervention of the SC limiting the unfettered use of Article 356 came in the celebrated case of S.R. Bommai v. Union of India.[16] The arbitrary dismissal of S.R. Bommai’s government in Karnataka was challenged in this case. The court observed that the satisfaction of the President on the basis of Governor’s report was indeed subjective. However, the material on the basis of which such satisfaction is reached can definitely be reviewed by the court. This in turn meant that the Governor’s report was within the ambit of judicial review. The court found that the report on the basis of which the President decided to invoke emergency was arbitrary and mala fide. The court, therefore, reinstated the Bommai government. It was also emphasized that the ‘breakdown of constitutional machinery’ under Article 356 meant virtual impossibility, not mere difficulty, in running the government according to the provisions of the Constitution. In this way, the Bommai judgment ensured that the Governor’s report was objective and rational, and could not be misused to arbitrarily dismiss the elected governments of the states.     

In the case of B.P. Singhal v. Union of India,[17] the decision of the Central Government was challenged wherein it ordered the removal the Governors of four states upon coming in power in 2004 general elections. The Supreme Court ruled that the President can remove the Governor anytime she is pleased, without assigning any reason of the removal whatsoever. However, this power should not be used arbitrarily without having any compelling reasons for removal. The court also stated that mere disagreement between the Governor and the newly elected Central Government will not be sufficient ground for the removal of the Governor. The B.P. Singhal case, though not fully, was instrumental in securing the tenure of the Governor. It ensured that the removal of the Governor was not out of malice, but premised on compelling reasons.

In the case of Nabam Rebia v. Dy. Speaker, Arunachal Pradesh Legislative Assembly,[18] the Governor summoned the House a month earlier than the scheduled date. Consequently, the incumbent CM failed to prove his majority in the House giving Governor the chance to dissolve the Assembly and recommend for President’s rule. The SC in this case ruled that the Governor can not summon the House at his discretion unless the CM has lost the majority. It held that the Governor’s power under Article 174 is subject to the aid and the advice of the Cabinet. The court also observed that Article 163(2) does nor confer absolute discretionary power upon the Governor and in no way gives her the right to turn her office into an “all-pervading super constitutional authority.”

The preceding observations of the Supreme Court in various cases suggest that it has tried to eliminate the arbitrary discretionary powers of the Governor. The court has recognised the position of Governor as an important link between the Centre and the states. It has tried to strike a balance between Centre’s interests and states’ autonomy by reaffirming the apolitical mandate given to the Governor. However, these interventions by the SC were in the nature of interpreting the already existing provisions related to the Governor. There have been other reformative suggestions by some committees which seek to introduce some constitutional changes regarding the position of Governor in India.

RECCOMENDATIONS OF SARKARIA AND PUNCHHI COMMMISIONS

Sarkaria Commission was appointed by the Government of India in 1983 to look into power imbalances in the Union-State relationships, and recommend changes to strengthen the federal framework of India. In its report, the commission advocated for the continuance of the position of Governor, though with some reforms.  On the matter of appointment of the Governors, it recommended that she should be appointed pursuant to effective consultations with the Chief Minister of the concerned state. Furthermore, it was suggested that the Vice President and the Speaker of the Lok Sabha should be consulted by the PM before selection of Governor. The commission also proposed that the Governor should be an eminent personality in some sphere of life, and should be from outside the state in which she is to be appointed. It was suggested that the Governor should not be engaged in political activities in the recent past and should not belong to the ruling party in the Centre. On the issue of tenure, the commission recommended that the governor should enjoy a tenure of five years, as far as possible. The commission recommended that the removal of the Governor should be based on objective criteria like the violation of constitutional propriety, morality or dignity.[19]

Though the commission tried to instil some transparency in the process, the net result was the continuance of the status quo. For instance, in the matter of appointment, it was not clarified whether or not the ‘effective consultation’ with CM will mean ‘concurrence’. Some of these issues were addressed by the Punchii commission.

Headed by former Chief Justice of India, Shri M.M. Puchii, the commission suggested some major reforms relating to the powers of Governor. It endorsed the recommendation of Sarkaria commission that the Governor should not be actively involved in politics before appointment; she should not be from the ruling party; and that she should be from outside the state. The commission suggested that the Governor should be granted a fixed tenure of five years. To ensure that Governor is not treated as “political football”, it was suggested that their removal from office should be by way of impeachment (like the president) by the state assembly. Perhaps the most important suggestion of the commission was the proposal of “localised emergency”. To ensure that the elected government is not removed frequently on the suggestion of the Governor, the commission suggested that instead of declaring emergency in state as a whole, Article 356 should only be invoked to those ‘districts or areas’ where the unrest originates. The commission also recommended a codified order of precedence to be followed by the Governor in case of a hung assembly. This was intended to ensure that the gubernatorial discretion in appointing the Chief Minister is not misused. It was also recommended that the period up to which the Governor can withhold a Bill should be limited to four months.[20]

Some of the recommendations of Sarkaria and Punchhi commissions are worth implementing. In fact, the Supreme Court in various decisions has emphasised on the importance of implementing the recommendations mooted by these commissions. Despite this, successive governments have shown a lackadaisical approach in implementing these reforms. It is high time that we codified the recommendations of these commissions. Apart from these reforms, the author also believes that pinning accountability on the Governor is necessary to prevent her from misusing her discretionary powers. In the present framework, the Governor is not accountable for her actions whatsoever. Even if she furnishes a mala fide report to the President under Article 356, she can’t be held accountable. It is submitted that if the Governor advocates for the President’s rule on the basis of a mala fide and arbitrary report, this should be considered as one of the grounds for her removal.

CONCLUSION

Amidst scathing criticism of the role of Governor, we have understated the continuing relevance and necessity of the post of Governor. One can not deny the crucial constitutional functions discharged by the Governor in times of absence of elected government in the state. The Governor, as the de jure head of the state, ensures the continuance of the state in such times. It also acts as a neutral mediator in intra-state disputes between different wings of the Government. A relook at the debates of the Constituent Assembly suggests that the framers of the Constitution envisaged Governor as the umbilical cord connecting the Union with the states. The Governor was granted discretionary powers to ensure that the states are run in accordance with constitutional principles. However, over the course of years, the appointment, tenure, and discretionary powers of Governor are subjected to a lot of criticism. Nevertheless, the author believes that the remedy does not lie in abolishing the post of Governor. The Supreme Court and the Punchii and Sarkaria commissions have also advocated for the retention of the post. The ideal course of action should be to limit the arbitrary discretionary powers of Governor and ensuring the independence and impartiality of the office of Governor by providing for its apolitical appointment, fixed tenure, and objective criteria for removal. Implementing the suggested reforms would be a sound step in ensuring an independent and apolitical office of the Governor as originally envisioned by the framers of the Constitution.

REFERENCE


[1] The Constitution of India, art. 153

[2] The Constitution of India, art. 154(1)

[3] The Constitution of India, art. 163(1)

[4] The Constitution of India, arts. 174, 200, 213

[5] Draft Constitution of India, art. 131

[6] Constituent Assembly Debates, May 31, 1949, Vol. VIII, speech by K.M. Munshi, ¶46  <https://www.constitutionofindia.net/constitution_assembly_debates/volume/8/1949-05-31 > (last visited on July 20, 2021)

[7] Constituent Assembly Debates, May 31, 1949, Vol. VIII, speech by B.R. Ambedkar, ¶112 <https://www.constitutionofindia.net/constitution_assembly_debates/volume/8/1949-05-31 > (last visited on July 20, 2021)

[8] Constituent Assembly Debates, June 01, 1949, Vol. VIII, speech by Brajeshwar Prasad, ¶36 <https://www.constitutionofindia.net/constitution_assembly_debates/volume/8/1949-05-31 > (last visited on July 20, 2021)

[9]Tamilisai Soundararajan youngest governor Andhra’s Harichandan oldest at 85’ available at < https://www.theweek.in/wire-updates/national/2019/09/10/del16-governors.html > (last visited on July 20, 2021)

[10] The Constitution of India, art. 156(1)

[11] The Constitution of India, art 74

[12] (1974) 2 SCC 831

[13] ibid 981

[14] Valmiki Chaudhary, President and the Indian Constitution 80 (Allied Publishers 1985)

[15] (1977) 3 SCC 592

[16] (1994) 3 SCC 1

[17] (2010) 6 SCC 331

[18] (2016) 8 SCC 1

[19] Sarkaria Commission on Centre-State Relations, ‘Role of Governor’, Chapter 4 115-138 (1988) <http://interstatecouncil.nic.in/wp-content/uploads/2015/06/CHAPTERIVpdf > (last visited on July 20, 2021)

[20] Punchhi Commission on Centre-State Relations, ‘Report on Constitutional Governance and the Management of Centre-State Relations’, Vol. 2 53-89 (March, 2010)

<http://interstatecouncil.nic.in/wp-content/uploads/2015/06/volume2.pdf > (last visited on July 20, 2021)

Author: Mr. Priyam Indurkhya, National Law Institute University, (NLIU) Bhopal

Editor: Kanishka VaishSenior Editor, LexLife India.

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