Issues with the post of Governor in India

WHY IN NEWS:

• West Bengal Assembly is planning to push through a resolution seeking removal of Jagdeep Dhankhar as West Bengal Governor as the political scuffle between West Bengal Chief Minister and Governor has become worsened.

THE GOVERNOR

• The state executive consists of the Governor, the Chief Minister, the Council of Ministers and the Advocate General of the state.
• 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.
• Therefore, the office of Governor has a dual role.

APPOINTMENT:

• Governor 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.

TERMS OF OFFICE

• A Governor 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 has no security of tenure and no fixed term of office.
• 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.
• A Governor whose term has expired may be reappointed in the same state or any other state.

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.

ISSUES WITH THE POST OF GOVERNOR

• Appointment of Governors:
  • The post has been reduced to becoming a retirement package for politicians for being politically faithful to the government of the day.
  • In several cases, politicians and former bureaucrats identifying with the ruling party have been appointed as the Governors by the Governments.
  • This has led to questioning the impartiality and non-partisanship of the post
  • In many cases, the convention of consulting the Chief Minister while appointing the Governor is not followed.
• Tenure of office is under the discretion of Union Government:
  • The Governor will hold office during the pleasure of the President for five years. President works on aid and advice of the Council of Ministers >> In effect, despite being an independent constitutional body, the office of Governor is under the control of the ruling government at the center.
  • This becomes problematic when the Governor loses favor of the ruling party at the center.
• 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.
  • Example: 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.
• Misuse of discretionary powers:
  • 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.
  • Example: In 2018, the Tamil Nadu Governor has been criticized for appointing vice-chancellors without consulting the state government.
  • 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: in case of the 2017 Goa and Manipur elections and in the 2018 Karnataka elections.
• Interferences in day to day administration
  • In certain cases, if a political party ruling in a state is not in liaison with the party at the centre >> the central government may try to interfere in the state’s administration through the post of Governor
  • For ex: There were allegation of “excessive interference” of West Bengal Governor in parliamentary matters and the functioning of West Bengal Assembly.
• Governor acting more as an ‘agent of the centre’
  • Power to submit report to advise the President to proclaim President rule in the state has been abused by political parties in power at centre >> to dismiss governments in state governed by parties in opposition.
• 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.
• Reservation of bills:
  • Governor has discretionary power to reserve any bill for President’s signature.
  • As per Article 201, when president sends back the bill to assembly and assembly passes it again, it will again go to President, but president can still withhold assent.
  • This can result in keeping the bill in a limbo. The Governors, and through them the Central Government have used this provision to serve the partisan interests.
• Recommendation for President’s rule:
  • The Governor has discretionary powers regarding recommending for President’s rule under Article 356. However, such powers have led to conflicts from time to time.
  • For example: In 2016, the Governor of Arunachal Pradesh recommended for President’s rule without providing a chance for the ruling party to prove its majority on the floor of the house.
• Lack of any significant function
  • Governor’s work is bound by the aid and advice of his council of ministers; this has brought down the significance of the office to a mere rubber stamp.

SUGGESTIONS TO IMPROVE THE ROLE

• Important recommendations made by Sarkaria Commission regarding Governors:
  • 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
  • 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)
  • The Commission agreed that 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 (which speaks about the Governor acting with aid and advice of Council of Ministers headed by CM, except in cases where he has discretion) 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.

PRACTICE QUESTION:

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