Issues Related to the Office of Governor – Explained, pointwise

Introduction

The role, powers, and discretion of the Office of Governor have been the subject of Constitutional, Political, and Legal debate for decades. The relationship between the Office of Governor and the elected Government has been strained and tense in multiple States in recent times. Critics argue that the recent political controversies between Governors and State Government pose challenge to the functioning of the federal structure as envisaged in the Constitution, and also tarnish the standing of the dignified Constitutional post. Constitutional Experts contend that to avoid such developments, Governors should stick to their Constitutional mandate.

What are the recent controversies associated with the Office of Governor?

Tamil Nadu: In January 2023, the Governor refused to read some parts of the Governor’s address at the beginning of the session of the State Legislative Assembly. He introduced some of his own words into it. The Governor also walked out of the House after the Assembly passed a resolution to put on record only the original speech that was prepared by the State Government for the Governor.

In January 2022, the State Government had taken exception to Governor’s Republic Day speech articulating the benefits of NEET, the medical entrance exam. Tamil Nadu Assembly had passed a Bill to exempt the State from NEET; the Governor had sent it back to the Legislative Assembly.

West Bengal: There was a public spat between the Governor and the Chief Minister. The Chief Minister went to the extent of blocking the Governor on social media. The Governor and the CM had differences on several issues, including the the administration and appointments in State run universities. The West Bengal Assembly (June 2022) passed a Bill paving the way for making the Chief Minister the Chancellor of State Universities replacing the Governor from the position.

Kerala: Kerala’s Governor sought the resignation of 9 Vice-chancellors following a Supreme Court judgement setting aside the appointment of the Vice-Chancellor of a technology university. The Governor had also said that the statements of individual ministers that lower the dignity of the office of the Governor, can invite action including ‘withdrawal of pleasure’.

Jharkhand: The Governor of Jharkhand didn’t act on the advice of the Election Commission of India to disqualify the Chief Minister of Jharkhand for violation of electoral norms. The delay by Governor resulted in prolonged political uncertainty in the State.

What are the reasons for controversies associated with the Office of Governor?

Appointment and Removal of Governor: The Governor is appointed by the President and holds the Office during the pleasure of the President. There are no specified qualifications for appointing a person as the Governor (apart from being a Citizen of India and being above 35 years of age). The President appoints and removes the Governor based on the recommendations of the Union Government. Thus the Governor tends to act according to the liking of the Union Government.

Constitutional Discretion: According to Article 163, there is a Council of Ministers to aid and advise the Governor to exercise her functions. However, the Constitution provides certain discretionary powers to the Governor, where she can act without the advice of the Council e.g., (a) The Governor can reserve a Bill passed by the State Legislative Assembly for the consideration of the President of India; (b) Exercising her power under Article 356 to recommend President’s Rule in the State; (c) The Governor can appoint Chief Minister when no political party has a clear majority; (d) The Governor can dismiss the Council of Ministers if unable to prove confidence in the State Legislative Assembly etc. among others. The exercise of the discretion sometimes result in political differences between the Governor and the State Government (e.g., reservation of a Bill).

Political Reasons: The conflict between the Office of Governor and the Council of Ministers/Chief Minister is more common when different political parties are in power at the Union and State level. This shows that the conflict is largely due to political differences e.g., in West Bengal, Kerala, Tamil Nadu, Jharkhand are ruled by different political parties than the Centre.

What are the SC Judgments regarding the Office of Governor?

Shamsher Singh vs. State of Punjab(1974): The Supreme Court held that the Governor is bound to act in accordance with the aid and advice of the Council of Ministers headed by the Chief Minister. Article 154(1) makes it clear that the executive power of the State is vested in the Governor, but shall be exercised by him in accordance with the Constitution.

SR Bommai vs. Union of India (1994): The case was concerned with the use of Article 356 and the Governor’s power to dismiss a State Government. The Supreme Court ruled that whether the State Government has the majority should be tested on the floor of the House. It shouldn’t be based on the subjective assessment of the Governor.

Rameshwar Prasad vs. Union of India (2006): The Supreme Court held the Governor’s decision to dissolve the Assembly as unconstitutional and mala fide.

Nabam Rebia vs. Deputy Speaker (2016): The Governor had went against the advice of the State Cabinet and called the session of the Legislative Assembly at an earlier date (against the recommended date). The SC confirmed that the Governor does not enjoy broad discretionary powers and is always subject to Constitutional standards. The Court concluded that the Governor’s discretion did not extend to the powers conferred under Article 174. Hence, he could not summon the House, determine its legislative agenda or address the legislative assembly without consultation. (Article 174 is related to the Sessions of the State Legislature, prorogation and dissolution).

What are recommendations of Bodies/Commissions regarding the Office of Governor?

The Administrative Reforms Commission (1969): The Commission recommended that non-partisan persons having long experience in public life and administration should be appointed as the Governors of a State.

Sarkaria Commission (1988): (a) Appointment of Governor: (i) The Governor should be appointed after consultations with the Chief Minister of the State; (ii) The Governor should be eminent in some walk of life and from outside the State; (iii) The person should be a detached figure without intense political links, or should not have taken part in politics in the recent past; (iv) The person should not be a member of the ruling party; (b) Removal of Governor: (i) The Governor should be removed before the end of the term (5 years) only on the grounds if doubts are raised about his morality, dignity, constitutional propriety etc.; (ii) In the process of removal before the end of the term, the State Government may be informed and consulted; (c) Use of Article 356: This article should be used very sparingly and as a matter of last resort. It can be invoked only in the event of political crisis, internal subversion, physical breakdown, and non-compliance with the Constitutional directives of the Centre.

National Commission to Review the Working of the Constitution (NCRWC): The Governor should be appointed by a Committee comprising the Prime Minister, Home Minister, Speaker of the Lok Sabha, and the Chief Minister of the State concerned.

The Second Administrative Reforms Commission (ARC): The Inter-State Council needs to come up with some guidelines for governors to follow when they are using their discretionary power.

Punchhi Commission (2010): (a) It proposed giving Governors a fixed term of 5 years and removing them through an impeachment process (similar to that of the President) by the State Legislature. The doctrine of pleasure (for removal of Governors) should be deleted; (b) It reiterated the recommendation of the Sarkaria Commission regarding appointment of Governors. The person shouldn’t be active in politics; (c) The convention of making the Governors as chancellors of universities should be done away with; (d) Article 355 and 356 should be amended to allow the Union Government to bring specific troubled areas under its rule for a limited period, instead of the whole State.

What should be the approach going ahead?

First, Multiple Commissions have provided very pragmatic recommendations regarding functioning of the Office of Governor. These recommendations should be implemented in right earnest especially those related to the appointment and removal of Governors.

Second, Both the Punchhi and Sarkaria Commissions had recommended that the Governors should not be burdened with the positions and powers that were beyond their constitutional domain. This was done with the intention of shielding the high office of the Governor from needless public controversies. In addition, the Punchhi and Sarkaria Commissions both agreed that this would be in the best interest of the State. A conflict with the State Government could thus be avoided by taking such an action.

Third, The Governors should also act in the best interests of the State as well as the Union. The Governor should not act as the agent of the political party in power at the Centre. The Governor should act as a link between the State and the Union Government.

Fourth, The Governor’s discretion and Constitutional mandate should be guided by certain ‘norms and principles’, which can be defined in a ‘Code of Conduct’. Discretion must be a decision that is guided by reason, motivated by good faith, and temperated by caution.

Fifth, Certain codification can be undertaken regarding discretionary powers as well e.g., determining the areas in which they have discretion, establishing a time frame within which they must act, and stating unequivocally that they are required to follow the advice of the Cabinet when dealing with Bills etc.

Conclusion

The recent controversies surrounding the Office of Governor are avoidable and unnecessary. Such controversies malign the dignity of the high Constitutional Office. The Union and State Governments should abide by the spirit of the Constitution as well as the Supreme Court’s Judgments in this regard. The implementation of recommendations of various Commissions can ensure that such needless controversies do not arise in future. The Governors should also act according to their Constitutional mandate, rather than acting as political agents. An active but unbiased Office of Governor can strengthen the Union-State relationship and the federal structure.

Syllabus: GS II, Issues and challenges pertaining to the federal structure; GS II, Structure, organization and functioning of the Executive; GS II, Appointment to various Constitutional posts.

Source: The Hindu, The Hindu, Indian Express, Indian Express