Role of Governors in Indian democracy

WHY IN NEWS?

Frequent tussles between Governors and executive has become a common feature in India, especially in states and UTs such as West Bengal, Kerala, New Delhi and Puducherry.

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. 

TERM 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.

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.

• 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 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.
  • 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.
  • E.g.: 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. E.g.: In 2018, the Tamil Nadu Governor has been criticized for appointing vice-chancellors without consulting the state government.
  • A major function of the Governor is to appoint the Chief Minister and other Ministers in the state. After elections in the state, there is a convention to invite the largest party to form government in the state. However, this convention has been flouted many times, such as in case of the 2017 Goa & Manipur elections and in the 2018 Karnataka elections.
• 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 e.g.: 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.

MAJOR COMMITTEE RECOMMENDATIONS

• Sarkaria Commission
  • In 1983, the Central government appointed a three-member Commission on Centre–state relations under the chairmanship of RS Sarkaria, a retired judge of the Supreme Court.
  • The Commission made 247 recommendations to improve Centre–state relations. The important recommendations regarding Governors are:
    • 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
  • The Second commission on Centre-State Relations was set-up by the Government of India in 2007 under the Chairmanship of Madan Mohan Punchhi, former Chief Justice of India.
  • The Commission made over 310 recommendations. The important recommendations regarding Governors are:
    • 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.
    • The procedure laid down for impeachment of President, can be made suitably applicable for impeachment of Governors as well.
    • 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.
    • 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.
  • On the question of Governor’s role in appointment of Chief Minister in the case of a hung assembly, it lays down certain guidelines:
    • 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.
• 2nd Administrative Reforms Commission
  • The Special Study Team of the Administrative Reforms Commission (ARC) has made several recommendations regarding the office of governor:
    • 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
  • 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.
    • Imposition of President’s Rule in a state would be proper in the following situations:
      • Where after general elections to the assembly, no party secures a majority, that is, ‘Hung Assembly’.
      • Where the party having a majority in the assembly declines to form a ministry and the governor cannot find a coalition ministry commanding a majority in the assembly.
      • Where a ministry resigns after its defeat in the assembly and no other party is willing or able to form a ministry commanding a majority in the assembly.
      • Where a constitutional direction of the Central government is disregarded by the state government.
      • Internal subversion where, for example, a government is deliberately acting against the Constitution and the law or is fomenting a violent revolt.
      • Physical breakdown where the government willfully refuses to discharge its constitutional obligations endangering the security of the state.
    • The imposition of President’s Rule in a state would be improper under the following situations:
      • Where a ministry resigns or is dismissed on losing majority support in the assembly and the governor recommends imposition of President’s Rule without probing the possibility of forming an alternative ministry.
      • Where the governor makes his own assessment of the support of a ministry in the assembly and recommends imposition of President’s Rule without allowing the ministry to prove its majority on the floor of the Assembly.
      • Where the ruling party enjoying majority support in the assembly has suffered a massive defeat in the general elections to the Lok Sabha such
  • Nabam Rebia judgment (2016):
    • 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.

WAY FORWARD

• 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 on several occasions. 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 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. The Office of the Governor is an independent Constitutional office not a subordinate position under the Central Government. Examine various issues and arguments surrounding Office of Governor in India.