GOVERNOR'S POWERS AND FRICTION WITH STATES

IN NEWS:

• Several instances of friction between the Governor and state governments have been in news recently:
  • Kerala governor publicly expressed his displeasure over the appointment of vice chancellors in universities.
  • Punjab Governor refused to clear the appointment of government nominee as the vice chancellor of Baba Farid University of Health Sciences (BFUHS), with the move likely to exacerbate the already strained relations between the Raj Bhavan and the Aam Aadmi Party government in state.

 THE GOVERNOR:

• Articles 153 to 167 in Part VI of the Constitution deal with the state executive. The state executive consists of the Governor, the Chief Minister, the Council of Ministers and the Advocate General of the state.
• The office of Governor was borrowed from the Government of India Act of 1935.
• The office of Governor has a dual role:
  • The Governor is the chief executive head of the state. But, like the president, he is a nominal executive head (titular or constitutional head).
  • The Governor also acts as an agent of the central government.

APPOINTMENT:

• The Canadian model, where the governor of a province (state) is appointed by the Governor-General (Centre), was adopted by India. He/she is appointed by the president by warrant under his hand and seal.
• In a way, he is a nominee of the Central government. But it is neither under the control of or subordinate to the Central government, nor is it an employment under the Central government. It is an independent constitutional office.
• Constitutional qualifications:
  • He should be a citizen of India.
  • He should have completed the age of 35 years
• Qualifications derived through conventions:
  • He should not belong to the state where he is appointed, that is, he should be an outsider.
  • While appointing the Governor, the president is required to consult the chief minister of the state concerned.
• Before entering upon his office, the Governor must make and subscribe to an oath or affirmation. The oath is administered by the Chief Justice of the concerned state high court and in his absence, the senior-most judge of that court available. In his oath, the Governor swears:
  • to faithfully execute the office
  • to preserve, protect and defend the Constitution and the law; and
  • to devote himself to the service and well-being of the people of the state

TERM OF OFFICE:

• A Governor has no security of tenure and no fixed term of office.
• He holds office for a term of five years from the date on which he enters upon his office, subject to the pleasure of the President. He is eligible for reappointment.
• The President may transfer a Governor appointed in one state to another state for the rest of the term.
• A Governor can hold office beyond his term of five years until his successor assumes charge.

REMOVAL FROM OFFICE:

• The Governor can resign at any time by addressing a resignation letter to the President.
• He may be removed by the President at any time. The Constitution does not lay down any grounds upon which a Governor may be removed by the President
• In any contingency (for example, the death of a sitting Governor) the chief justice of the concerned state high court may be appointed temporarily to discharge the functions of the Governor of that state.

PRESIDENT vs. GOVERNOR:

• A governor possesses executive, legislative, financial and judicial powers analogous to the President of India. However, he has no diplomatic, military or emergency powers like the president.

• Constitutional position of the Governor differs from that of the president in two respects:
  • While the Constitution envisages the Governor with discretionary powers, no such powers has been envisaged for the President.
  • Advice rendered by the Council of Ministers is binding on the President (42^nd Amendment, 1976). But no such provision has been made with respect to the Governor.
• The Governor has constitutional discretion in the following cases:
  • Reservation of a bill for the consideration of the President.
  • Recommendation for the imposition of the President’s Rule in the state.
  • While exercising his functions as the administrator of an adjoining union territory.
  • Determining the amount payable by the Government of Assam, Meghalaya, Tripura and Mizoram to an autonomous Tribal District Council as royalty accruing from licenses for mineral exploration.
  • Seeking information from the Chief Minister with regard to the administrative and legislative matters of the state.
• Besides these, the Governor also has certain situational discretion:
  • Appointment of Chief Minister when no party has a clear-cut majority in the state legislative assembly or when the chief minister in office dies suddenly and there is no obvious successor.
  • Dismissal of the Council of Ministers when it cannot prove the confidence of the state legislative assembly
  • Dissolution of the state legislative assembly if the Council of Ministers has lost its majority.

ISSUES SURROUNDING THE POST OF GOVERNOR:

• Politically motivated appointment:
  • Politicians and former bureaucrats identifying with the ruling party at Centre are often appointed as the Governors.
  • The post has also been reduced to become a retirement package for politicians for being politically faithful to the government of the day.
  • This questions the impartiality and non-partisanship of the post.
• Violation of conventions:
  • The convention of consulting the Chief Minister while appointing the Governor is not followed in most cases. This hinders the smooth functioning of the constitutional machinery in the state.
• Removal of Governors:
  • There are no written grounds or procedures regarding the removal of Governors. Hence in several cases, the governors were removed on whimsical grounds.
  • Ex: In 1977, when the Janata Party formed government at the center, it dismissed 15 governors appointed during by the previous government on grounds that they did not represent the will of the people.
• Indirect control by Union Government:
  • The President works on aid and advice of the Council of Ministers and the Governor holds office during the pleasure of the President. In effect, the office of Governor is under the control of the ruling government at the center.
• Misuse of discretionary powers:
  • Governor’s discretionary powers to invite the leader of the largest party/alliance, post-election, to form the government has often been misused to favor a particular political party.
  • For ex: The cases in Goa and Manipur in 2017 and in Karnataka after 2018 elections.
  • The Governor also makes appointments to several posts in consultation with the executive. However, on several occasions the Governor has been criticized for making appointing without consulting the state government.
  • For Ex: In 2018, the Tamil Nadu Governor has been criticized for appointing vice-chancellors without consulting the state government.
• Recommendation for President’s rule:
  • The Governor has discretionary powers regarding recommending for President’s rule under Article 356. However, despite judicial guidelines in S.R Bommai case, this provision is abused by political parties in power at centre to dismiss governments in state governed by parties in opposition.
  • Ex: In 2016, the Governor of Uttarakhand recommended for President’s rule without providing a chance for the ruling party to prove its majority on the floor of the house, which was later overturned by the High court.
• Functioning as an agent of political party:
  • Governors are not shy of revealing their partisan preference. For instance, in recent times Governors have exhorted voters to vote for particular party.
  • Recently, the Governor of Rajasthan has been charged with the violation of the model code of conduct.
• Consideration of bills:
  • Pocket veto:
    • As the constitution makes no mention of a timeframe for taking decision, governors sometimes withhold bills without giving assent or returning the Bills, thereby keeping state bills in limbo.
  • Reservation of bills:
    • As per Article 201, Governor has discretionary power to reserve any bill for President’s signature. But they often take months to reserve the Bills for the assent of the President.  
• Interferences in day-to-day administration
  • The constitution empowers the governor to ask for information on administrative matters from the chief minister. However, this has left the door open for Governor’s intervention in day-to-day state politics, like in West Bengal.

SUGGESTIONS TO IMPROVE THE ROLE:

• Recommendations made by Sarkaria Commission:
  • While selecting Governors, the Central Government should adopt the following strict guidelines:
    • He should be eminent in some walk of life
    • He should be a person from outside the state
    • He should be a detached figure and not connected with the local politics of the states. He should be a person who has not taken too great a part in politics generally and particularly in the recent past
  • Retiring governors should be debarred from accepting any office of profit.
  • The Governor’s term of five years in a state should not be disturbed except for some extremely compelling reasons.
  • Article 356 should be used very sparingly, in extreme cases as a last resort when all the available alternatives fail.
  • While sending ad hoc reports to the President, the Governor should take the Chief Minister into confidence unless there are overriding reasons to the contrary.
• Punchhi Commission recommendations:
  • Fixed tenure:
    • Governors should be given a fixed tenure of five years and their removal should not be at the sweet will of the Government at the Centre.
  • Impeachment procedure to be applied to the post of Governor:
    • The procedure laid down for impeachment of President, can be made suitably applicable for impeachment of Governors as well.
  • Time decision on bills:
    • In respect of bills passed by the Legislative Assembly of a state, the Governor should take the decision within six months whether to grant assent or to reserve it for consideration of the President.
  • Streamlining the role of Governor
    • The convention of Governors acting as Chancellors of Universities and holding other statutory positions should be done away with. His role should be confined to the Constitutional provisions only.
  • Guidelines to be followed by Governor in appointment of Chief Minister in the case of a hung assembly:
    • The party or combination of parties which commands the widest support in the Legislative Assembly should be called upon to form the Government.
    • If there is a pre-poll alliance or coalition, it should be treated as one political party and if such coalition obtains a majority, the leader of such coalition shall be called by the Governor to form the Government.
• Recommendations made by 2nd Administrative Reforms Commission:
  • A person to be appointed as a Governor should be one who has had a long experience in public life and administration and can be trusted to rise above party prejudices and predilections.
  • He should not be eligible for further appointment as a Governor at after the completion of his term.
  • Judges, on retirement, should not be appointed as Governors. However, a judge who enters public life on retirement and becomes a legislator or holds an elective office may not be considered ineligible for appointment as Governor.
  • The convention of consulting the Chief Minister before appointing a Governor is a healthy trend that may continue.
  • Guidelines on the manner in which discretionary power should be exercised by the Governors should be formulated by the Inter-State Council.
• Recommendations of National Commission to Review the Workings of the Constitution (NCRWC)
  • Article 155 regarding appointment of Governors requires to be amended. It suggested a committee comprising the Prime Minister of India, Home Minister, Speaker of the Lok Sabha and the Chief Minister of the State concerned to select a Governor.
  • It recommended that pre-poll alliance/coalition should be treated as one political party for the purpose of the Tenth Schedule to the Constitution of India.
• Judicial Recommendations
  • BP Singhal case of 2010:
    • The Supreme Court laid down some binding principles while hearing the case of removal of the governors of Uttar Pradesh, Gujarat, Haryana and Goa in July, 2004 following the defeat of the BJP-led NDA government in the Lok Sabha election.
    • Supreme Court said the President’s power to remove a governor could not be exercised in an arbitrary, capricious or unreasonable manner.
    • It was to be exercised only in rare and exceptional circumstances for valid and compelling reasons.
  • S.R. Bommai vs. Union of India (1994):
    • Based on the report of the Sarkaria Commission, the Supreme Court in Bommai case enlisted the situations where the exercise of power under Article 356 could be proper or improper.

• • Nabam Rebia judgment (2016):
    • Supreme Court in this case ruled that the exercise of Governor’s discretion under Article 163 is limited.
    • His choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution.
  • Government of NCT Delhi vs Union of India (2018):
    • A five-judge Constitution bench held that the Lt. Governor has to act either on the aid and advice of the Council of Ministers or abide by the decision of the President on a reference made by him.
    • It held that every trivial difference of opinion between the LG and the NCT government cannot be referred to the President for a decision.
    • Even in case of differences of opinion, the LG and the NCT government should act with constitutional morality and trust for each other.

WAY FORWARD:

In recent years, the bitterness between states and Governors have been largely about the selection of the party to form a government, deadline for proving majority, sitting on Bills, and passing negative remarks on the state administration.

However, the Office of Governor is one of esteem importance in ensuring the “Quasi-Federal” nature of India. Hence, it is of utmost importance that the Office be prevented from falling under political debacles and criticisms.

• Ensuring neutrality and non-partisanship can bring back people trust in the office. Hence structural reforms in areas such as appointments and use of discretionary powers are needed. Here, the recommendations of Sarkaria Commission should be considered, as they put forth well-defined guideline on several areas concerning the office of Governor.
• It is true that the discretionary powers of the Governor have been misused. However, it is not advisable to remove them all together, as such measures are essential to ensure the proper working of India’s democratic structure. The best method would be to codify them to the possible extend, with adequate room to ensure the accountability of their actions.
• The undue control of Central government should be reduced. For the same, procedure for appointment and removal procedures of governors should be clearly laid down and their tenures must be fixed so that the governor is not under the constant threat of removal by the central government.

PRACTICE QUESTION:

Q. While judicial powers of the President exceed that of the Governor, discretionary powers of the Governor exceed that of the President. Examine?

Q. ‘Governor should act according to the spirit of the Constitution, rather than being an agent of the centre’. Analyse this statement in the light of recent controversies involving the post of Governor in India.