The Governor

The Governor is the nominal head of a State while the Chief Minister and the Council of Ministers exercise the real power. The position of the Governor has been in the spotlight time and again due to repeated controversies arising due to the biased actions of governors of different states. The ambiguous provisions of the Constitution regarding powers of the Governor in selecting the party or candidate to form government in absence of a clear majority have created chaos in the political scenario of the states.
Since 1952, after the dismissal of Kerala government by the Governor, the role of Governors has been questioned number of times. Recently, in 2016, the Governor of Assam unilaterally summoned an Assembly session and sent messages to the Assembly, this action was later struck down by the Supreme Court. Similarly, in 2017 the Governors of Goa and Manipur acted on their own will and invited the second largest parties to form the respective governments.
In 2019, the Governor of Karnataka invited the single largest party to form the government thereby by side-lining the post poll alliance (Congress-JD(S)). This also raised questions on the discretionary powers of the Governor to invite parties to form the government because in a similar situation for Goa in 2017, the Governor had ignored the single largest party (Congress) and had called the numerically stronger post-election alliance of BJP to form the government. In Maharashtra also after elections of 2019 no single party had a majority of its own due to breaking of BJP- Shiv Sena pre-poll alliance. Even when post poll alliances were being planned, the Governor of Maharashtra took the decision to administer oath to a candidate of the BJP party. This case was also challenged in the Supreme Court by a post poll combination of Shiv Sena, NCP and the Congress, which ordered the BJP for a floor test in order to prove majority. However, the Chief Minister as well as the Deputy Chief Minister resigned before the floor test having admitted that they did not hold the required majority.
After the post poll alliance, Uddhav Thackeray became the Chief Minister. However, another issue arose when the Governor of Maharashtra remained silent and took no actions on the recommendation of the cabinet to elect Uddhav Thackeray (not a member of either of the Houses of Maharashtra Legislature) to the Legislative Council. This was because as per the Constitution, when a non member is elected as the Chief Minister, he/she has to elected to either of the Houses within 6 months of appointment and delay on the part of the Governor could have led to resignation of the Chief Minister. In the series of issues between the Governor and the state government, the most recent additions are the cases of Kerala and West Bengal where the Governors and the respective state governments have been at loggerheads. The Governor of Kerala has taken a stand against the anti-CAA approach of the state government and in West Bengal the Governor has raised number of issues regarding malfunctioning of the state government.
Role of the Governors in the Constitution
The founding fathers of the Constitution had approved the position of the Governor who would act as a vital link between the centre and states. The idea of a federal structure with Governor as the nominal executive head in states was taken from the Government of India Act of 1935. As India adopted a federal system, it was essential that a nominal head be placed in the state so as to control the situation in case if the state government goes haywire besides maintaining a link between the central and state governments. The Constitution provides that the Governor is to be appointed by the President and shall hold office during the pleasure of the President. This provision allows the Union government to influence the selection of Governors as the President acts as per the aid and advice of the Prime Minister and the Council of Ministers.
The Constitution has vested the executive power of the State in the Governor as per Article 154. The Governor shall exercise his powers either directly or through subordinate officers. The Constitution in Article 163 provides that the Governor shall be aided and assisted by a Council of Ministers with the Chief Minister at its head in the exercise of his functions in all cases except for the discretionary functions. Further, the Constitution also states that the decision of the Governor shall be final in order to decide which matters come under his discretion. Article 164 mentions that the Chief Minister is to be appointed by the Governor and the other ministers also have to be appointed by the Governor on the advice of the Chief Minister. The Constitution also states that the Governor would administer the oaths of office of all ministers and all the ministers shall hold office during the pleasure of the Governor. Article 166 states that all actions of the state governments are to be taken in the name of the Governor. Article 167 mentions the duty of the Chief Minister to communicate to the Governor all the decisions of the Council of Ministers related to administration and other affairs of the state besides furnishing information that the Governor may call for.
The discretionary powers of the Governor include powers to report to the President regarding breakdown of constitutional machinery in the state thereby imposing President’s rule (Article 356), withholding his assent to a bill and reserving it for the President’s approval (Article 200), he may override the decision of the Council of Ministers of the state in case of emergency when he has been specifically asked to do so by the President (Article 353), the Governor can call a candidate or party to form the government in case no party is able to secure the required majority and the Governor also sends his own report to the President regarding affairs of the state.
Supreme Court Judgements on the Governor
The Supreme Court in different cases has remarked and set guidelines in relation to the role of Governors. In the Hargovind Pant vs. Raghukul Tilak case of 1974, the Court held that the Governor is not subordinate or subservient to or under the control of the central government while discharging his duties. In a landmark judgement in the case of S. R. Bommai v. Union of India (1994), the Supreme Court set out certain guidelines with respect to the role of Governors. The Karnataka Assembly was dismissed, and President’s rule was imposed by the Governor without giving a chance to the government to prove its majority. The case along with similar other cases was judged by the Court. The Supreme Court in its judgements outlined that the majority of the government has to be tested by means of floor test in the House, centre has to give time to the state government and should consider a week’s time for their reply before declaring failure of constitutional machinery, the Supreme Court cannot question the advice of the Council of Ministers to the President in such matters but it reserved for itself the power to question the material (along with its relevance) behind satisfaction of the President for accepting the request of President’s rule, the Court could also declare the Governor’s report mala fide and restore the dismissed government. In this case the Supreme Court stated that the powers of the President to approve President’s rule in states is not absolute and his proclamation has to be approved by the Parliament and only then the State Legislative Council can be suspended.
After this judgement in different cases like 1998 Uttar Pradesh Assembly composite floor test was ordered (Jagdambika Pal vs. Union of India and Ors). Further, in 2005- Jharkhand Assembly, in 2016- Uttarakhand Assembly, in 2017- Goa Assembly, in 2018- Karnataka Assembly, in 2019- Maharashtra Assembly etc also the Supreme Court intervened and ordered floor test to prove majority. Besides these, in 2005, Rameshwar Prasad v Union of India case, the Supreme Court ruled that a post poll alliance or combination can be formed legally, and the Governor cannot decline such a formation on grounds of use of unethical means. It also stated that the immunity granted to the Governor to decide on discretionary matters was not free from judicial scrutiny if the Governor’s decision is challenged on the ground of mala fides. In 2016 when the Governor of Arunachal Pradesh took unilateral decision by summoning the Assembly session and sending messages to the Assembly, the Supreme Court struck it down as unconstitutional and laid down certain propositions of law- the Governor does not have the power to unilaterally summon an Assembly session until the government has lost its majority, the Governor cannot steps so as to disqualify the Speaker and the Governor could not send unilateral messages to the Assembly on any matter. These restrictions were put on the powers of the Governor as the Supreme Court stated that the Governor is bound by the aid and advice of the Council of Ministers and even in case of his discretionary powers he has to work under the guidelines as specified by the Constitution.
Recommendations of Different Commissions on Role of Governor
There have been different commissions that recommended changes to the role of the Governor in order to better shape the centre-state relations. The Sarkaria Commission of 1988 made certain recommendations with respect to the role of the Governor. As per the Commission, the Governor should be appointed from among eminent persons outside the state who were not actively involved in politics at least for some time before their appointment. It also states that such a person should be appointed who is detached from politics of the state. Further, the Governor should be appointed after consultation with the Chief Minister of the State, Vice-President of India and the Speaker of the Lok Sabha. Besides this, the Commission also recommended that in case of a hung Assembly the order to be followed by the Governor should be- first, an alliance formed prior to the election, second, the largest single party claiming majority including the independent candidates, third, post poll coalition with all the partners joining the government and fourth, a post poll alliance where some of the parties join the government and some extend their support from outside. It also recommends that floor test should be the deciding factor for proving majority and if the majority of the Chief Minister is contested by a significant number of members then the Governor should summon the Assembly so that the Chief Minister can take a floor test and the Governor should not act as per will in such a case. The commission also stated that President’s rule should be left only as a last resort and a prior warning must be issued to the state government regarding the same.
The National Commission to Review the Working of the Constitution also submitted its report in 2002. In its report the Commission recommended that the Governor be appointed by the President but only after consulting the Chief Minister of the concerned state. Besides this the removal or transfer must also follow the same procedure as the appointment (i.e with the consultation of the Chief Minister). It recommended setting a time limit of six months for the Governor to decide upon either giving assent to a bill or reserving it for the President’s approval. It also recommended that before invoking Article 356 and declaring President’s rule, the state should be given adequate chances to present its argument and a chance for redressing the situation must be given to the state before invoking President’s rule. The Commission gave due importance to the recommendations of the Sarkaria Commission on the matter of appointing the Governor from outside state having no political affiliation.
Another important commission was the Punchhi Commission of 2007. The Commission made similar recommendations with respect to appointment of the Governor not from political background rather to choose from eminent persons from other walks of life. It also recommended that appointment of governor should be done by a committee including the Prime Minister, Home Minister, Speaker of the Lok Sabha and chief minister of the concerned state. It called for removing the provision of the Governor serving at the pleasure of the President because it wanted to remove the role of the Parliament in influencing the tenure of the Governor. The Commission recommended that the State Legislature should be given the power to move a resolution for removal of the Governor. The Commission also suggested doing away with the convention of making the Governors as the chancellors of universities. It also suggested modifying Article 355 and 356 so as to limit the time period to a maximum of 3 months for President’s rule in the states. Further, the President’s rule should not be imposed on the entire state rather it must be applied to particular areas in the state as per need.
Arguments For and Against Abolishment of the Post of the Governor
During the formation of the Constitution also debates were held regarding the post of the Governor. The arguments against the post were various. First, it was feared that the Governor would act on the behest of the party at the centre and this would increase the friction between the centre and the states. Second, the provisions of in the Constitution particularly in relation to giving assent to a bill, inviting the party or candidate for forming the government in case of hung assembly and the President’s rule have skewed the powers at the state level in favour of the Governor and this in turn has diminished the powers and independence of the states in comparison to the centre. Third, as the Governor is the formal head of a state and he can exercise his discretionary powers at will, it increases the chances of abuse of powers thereby hindering the free functioning of the state government and ultimately leads to chaos and adversely affects public welfare. Fourth, people also argue that the post of Governor has been borrowed from the Government of India Act of 1935 which was established by the Britishers only to serve their purpose and it has no relevance in the present time as the Chief Minister can regulate and overview the affairs of the state. Fifth, it has also been pointed out that the Governor has been vested with too much powers and this would naturally lead to involvement of the Governor in the political process whereas the office of the Governor should be a neutral one as per constitutional mandate. Lastly, due to the appointment procedure of the Governor, the office of the Governor has become a post retirement sinecure for loyal members of the political parties.
The arguments against abolishing the post of the Governor are primarily related to the role of the Governor to function as a vital link between the centre and the state. Experts in support of the post of Governor have acknowledged the issues arising out of the office of the Governor but they have the view that because of the actions of the office holder the sanctity of an office cannot be questioned. As per them, the issue lies with some of the office holders and not with the institution as such. It has also been argued that in a federal system, the post of Governor is a necessity in order to check and prevent the Chief Minister from acting as an autocrat. The Governor is seen as the custodian of the Constitution at the state level. All the actions performed by the state are in his name and he wields the power to invoke President’s rule in case of breakdown of constitutional machinery in the state and the administration collapses. As stated by Mahatma Gandhi, the position of the Governors must be that of moral influencers in the provinces. Though the Governor is not elected but he is the formal head of the state functioning as a safety valve and acting constitutionally.
Conclusion
The post of Governor has been questioned time and again due to the number of cases in which different Governors have acted as per their own will and have become actively involved in state politics instead of remaining neutral. Even though issues exist in the post, eliminating the post as a whole would not be in the interest of the overall system of governance. The Governor is a vital link between the centre and states, and he is the official head of a state. In such a scenario it would be effective to modify the provisions of the Constitution in relation to the Governor, modify the appointment procedure of the Governors and limit their powers to an extent where they would function only as a necessary check for the state government. Much like the President at the centre, Governors in the states are vital in order to function as a moral check and influencer who would morally pressurise the elected governments to make the right choices for welfare of the public.
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