Whether Indian Federation Needs a Governor?

The Kerala has seen recently how the requisition to summon the House of Assembly which was initially delayed and only after second serious effort the Governor has acted. Going by the media leaks, the Governor was not inclined to read a particular paragraph of his first address to joint session of two Houses of Kerala Assembly, prepared by the Government.

After passing through several controversies with the Governor, the State is looking for a significant change in the Constitution to alter the power of institution of the Governor.

The elected Governments in States are at the risk of losing the 'pleasure' of Governor for reasons which are beyond Constitutional norms. In several states Governors are not in the normal terms with the Chief Ministers. Governors, instead, using social media to oppose the views of their Chief Ministers, holding press conferences, summoning the civil servants etc. The Quasi Federal Constitution is being turned into platform for quarrel federal politicking.

Recently, Governor R.N. Ravi returned theNational Eligibility-cum-Entrance Test (NEET) Bill passed by the Tamil NaduAssembly^[1]. There is already a battle between West Bengal Governor Jagdeep Dhankhar and Chief Minister Mamata Banerjee. Starting with the Howrah Corporation Bill 2021 up to the appointment of Vice-Chancellors in 24 state-run universities, the Governor objected to the functioning and the decisions of the state government, as he raised 7 issues in 14 days^[2].

The `Doctrine of Pleasure' is not absolute or unrestricted in India. It is severely curtailed in case of government employment under Article 311 for civil servants. But this doctrine as applicable for the pleasure of the President is without any restrictions or limitations under Article 75(2) relating to ministers, Article 76 (4) relating to Attorney General and Article 156(1) relating to Governors. Similarly, Article 164(1) and 165(3) provides that the Ministers (in the States) and Advocate General for the State shall hold office during the pleasure of the Governor. In fact, it is the pleasure of the Prime Minister. It further, practically translates into the pleasure of the ruling party. Doctrine of Pleasure of Governor is, now, in juxtaposition to democratic power of the Chief Minister.

We are a republic because the public representatives elect the President, as against the Kings and Queens ruling by succession in dynasty. The elected President will select the Governor, on recommendation of the Prime Minister.

The Governor is a constitutional head of the State Executive, and has, therefore, to act on the advice of a Council of Ministers under Art. 163. The Governor is, however, made a component part of the State Legislature under Art. 164, just as the President is a part of the Parliament. In all these matters the Governor as the constitutional head of the State is bound by the advice of the Council of Ministers^[3].

Negotiated, Arbitrary And Non-Transparent

There is no provision in the Constitution to check arbitrariness in selecting a person to this high office, with very high powers, without fixing any responsibility for anti-Constitutional functioning. The Rashtrapathi or the Prime Minister are made accountable and could be removed. During the negotiations for integration of States into present political form of India, the former princes and kings were given the status of Governorship and asked to 'rule' from Raj Bhawan. It is changed when the statesman and eminent political personalities are selected as Governors. There were certain political negotiations behind giving this luxurious position of a ruler. Burgula Ramakrishna Rao, who opposed integration of Telangana with Andhra, was appointed as Governor of Kerala in 1956 to facilitate the Integration. He is the first governor who used Article 356 to dismiss the elected Government of Kerala. He was made Governor of Uttar Pradesh in 1960, Similarly, Dr. Marri Chenna Reddy was appointed as Governor of Uttar Pradesh in 1974 to defuse the separate Telangana agitation, after he merged the regional party with ruling Congress party then, Dr Reddy was also made Governor of Punjab (1982), Rajasthan (1992) and Tamil Nadu (1993-1996 until his death). He became Chief Minister by winning elections as Congress leader, in 1978, after the Congress was split during Janata rule at Delhi. After couple of years, Dr Reddy was replaced with another Chief Minister in Andhra Pradesh, and then he was accommodated as Governor. He fought against NT Ramarao's Telugu Desham and won elections to become CM in 1989. Again, for political replacement he was accommodated in power as Governor of Rajasthan. It is clear that the gubernatorial position was used for political negotiations. When such appointments were carried on for some decades, the Delhi was using, abusing and misusing, besides not using when necessary, Article 356 to control the politics in States. The office of Governor, has thus acting as per the wishes of the Delhi rulers.

Negotiation Subjects

We have two examples of former Chief Justices of India being appointed in a few months after they demitted the high office, one as Governor of astate, and the other as member in Rajya Sabha by nomination, which raises several doubts. These appointments are rightly criticised as interference with independent judiciary, through offer of a post-retirement position. Is it legal inducement?

Term And Termination

It is assumed normally that Governor has a term of five years, but it is not guaranteed that they would run the whole term. President could sack a Governor, before five years or extend his term beyond five years. There is no provision to impeach or remove the Governor. The Delhi has triple power to create, use, and destroy the Governors, at its pleasure, i.e., the whims and fancies of the ruling party.

Duty Of The Governor

The Supreme Court in Rameshwar Prasad case affirmed the views of the Sarkaria Commission that the Governor needs to discharge "dual responsibility" to the Union and the State. Further, most of the safeguards as regards the working of the Governor will be such as cannot be reduced to a set of precise rules of procedure or practice. This is so because of the very nature of the office and the role of the Governor. The safeguards have mostly to be in the nature of conventions and practices, to be understood in their proper perspective and faithfully adhered to, not only by the Union and the State Governments but also by the political parties^[4].

The governor has many nominal functions like he makes all the appointments, has legislative powers to sign ordinances and assent to Bills, to summon and prorogue the legislative Houses. Governor causes to be laid before the State Legislature the annual financial statement- state budget. However, he is only a nominal head during normal days, and he is not permitted to take any decision on his own without state cabinet's advice when an elected government is in charge under the provisions of Part VI of the Constitution.

Discretionary Powers

Governors discretionary powers are almost at par with the President, who rules whole nation, while the Governor's powers limited to state territory. It will be damaging when State Emergency is imposed, i.e., Presidents Rule after dismissing the State Assembly. The Article 358 provides that the Article 19 rights could be suspended during state emergency, which is a draconian power. Article 359 allows suspension of the enforcement of the rights conferred by Part III during emergencies.

Ambedkar Explained Governor's Duties

Dr. B.R. Ambedkar, said that the Governor under the Constitution has no functions which he can discharge by himself; no functions at all.…Article (Article 167) certainly does not confer upon the Governor the power to overrule the Ministry on any particular matter. nowhere…the Governor in any particular circumstances may overrule the Ministry. Thus, he countered the criticism that this Article somehow enables the Governor to interfere or to upset the decision of the Cabinet is entirely beside the point, and completely mistaken"^[5]. He says that although the Governor has no functions still, even the Constitutional Governor, that he is, has certain duties to perform. One is, that he has to retain the Ministry in office. Because, the Ministry is to hold office during his pleasure, he has to see whether and when he should exercise his pleasure against the Ministry. The second duty which the Governor has, and must have, is to advice the Ministry, to warn the Ministry, to suggest to the Ministry an alternative and to ask for a reconsideration….. otherwise, he would be an absolutely unnecessary functionary: no good at all… He is the representative not of a party; he is the representative of the people as a whole of the State. It is in the name of the people that he carries on the administration. He must see that the administration is carried on at a level which may be regarded as good, efficient, honest administration.

The expression "required" signifies that the Governor can exercise his discretionary powers only if there is a compelling necessity to do so. It has been held that the expression "by or under the Constitution" means that the necessity to exercise such powers may arise from any express provision of the Constitution or by necessary implication. We would like to add that such necessity may also arise from rules and orders made "under" the Constitution.^[6]"

It is an accepted principle that in a parliamentary democracy with a responsible form of government, the powers of the Governor as Constitutional or formal head of the State should not be enlarged at the cost of the real executive, viz. the Council of Ministers. The scope of discretionary powers has to be strictly construed, effectively dispelling the apprehension, if any, that the area for the exercise of discretion covers all or any of the functions to be exercised by the Governor under the Constitution. In other words, Article 163 does not give the Governor a general discretionary power to act against or without the advice of his Council of Ministers. Even this limited area, 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.^[7] Ambedkar's hopes are dashed by the present-generation governors totally.

Article163(2) gives an impression that the Governor has a wide, undefined area ofdiscretionary powers even outside situations where the Constitution hasexpressly provided for it. Such an impression needs to be dispelled. TheGovernor's discretionary powers are the following: to give assent or withholdor refer a Bill for Presidential assent under Article 200; the appointment ofthe Chief Minister under Article 164; dismissal of a Government which has lostconfidence but refuses to quit, since the Chief Minister holds office duringthe pleasure of the Governor; dissolution of the House under Article 174;Governor's report under Article 356; Governor's responsibility for certainregions under Article 371-A, 371-C, 371-E, 371-H etc.

Dismissal of the Chief Minister It has already been stated that the Council of Ministers occupy office upon the pleasure of the Governor. Further, Article 164 states that Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. So, the question arose as to whether the discretion of the Governor or his pleasure is curtailed by the fact that the Ministers no longer enjoy the confidence of the House. Courts have time and again clarified that the discretion of the Governor is not fettered by any condition or restriction. It was held that the Assembly could only express want of confidence in the Ministry; it can go no further. The power to dismiss solely and entirely rests with the Governor. However, the fact that the Ministry has lost confidence is a major consideration for its dismissal^[8].

During State-emergency as per Article 353 (effect of proclamation of emergency), the Governor can override the advice of the council of ministers if specifically permitted by the President. Until the Supreme Court emphatically drawn the law that floor test is the only way of ascertaining the majority strength of the Chief Minister, the governor's pleasure was ruining the elected Governments in states. More than hundred times the Delhi has used Article 356 powers through its loyal agents in Raj Bhawans to dismiss elected Governments and transferring power to the Bureaucrats at the beck and call of Union Government.

Latest example of sacking a Governor is that of KK Paul of Arunachal Pradesh, who was admonished by the Supreme Court for misusing his power to pull down a non-BJP Government. The factual circumstances and political commands from Delhi Rulers were the reasons for the actions of the Governor. But, masters will not be caught, while agents get sacked.

Article 361 provides enormous immunity to the Governor at par with the President of India. The Governor cannot be summoned for questioning except. He can voluntarily testify in the court in support of his deeds. His actions however could be reviewed by the Court. The unconstitutional decisions taken by the Governor can be declared invalid by the courts. His reports to Union to impose Presidents rule also could be examined by the courts and if the report is not bona fide or material he relied on is not valid, or President acting on such reports of Governor could be questioned in courts of law and quashed. In the last 72 years of republic, no governor has resigned on impropriety to continue in office for declaring and nullifying his decisions as unconstitutional by the courts till now. After the Governor submits a resignation or transferred to another state, there is no history of imposing any liability for breach of oath, breach of trust, or breach of constitutional norms etc. There was no criminal case for disrespecting Constitution even after the Supreme Court or High Court declared their acts as unconstitutional, mala fide, void, or ultra vires, etc.

2016 Massive Blow To Centre State Relations

By July 15, 2016 two Non-BJP Governments ruled (Congress) were removed by the Governors but restored by the Supreme Court. In Uttarakhand and Arunachal Pradesh, the role of Governors came under cloud and admonition. The Supreme Court has ordered floor test which was won by the dethroned Chief Minister Harish Rawat of Uttarakhand. The Delhi rulers not only used the Article 365 for such political strategy but also maintained before the Courts that imposition of President's Rule was their exclusive prerogative.

After giving several reports on Uttarakhand state affairs, the Governor KK Paul scheduled a floor test on 28^th March. The irony of the events is that the President Pranab Mukherjee, dismissed Harish Rawat's Government on 27^th March and placed the assembly under suspended animation on the recommendation of Union Cabinet, preventing the test of strength. Nether the advisor nor the advised thought wisdom demanded a days' time to test strength on floor, that could have avoided unnecessary abuse of Article 356. The division bench of Uttarakhand comprising justice KM Joseph and justice VK Bisht said: "The President can be an excellent person but he can be terribly wrong, judges can also be terribly wrong,"

Centre Acting Like A Private Party

Within a month after imposing State Emergency, i.e., on 21 April 2016, the Uttarakhand HC quashed the order of the President's Rule, and held that Congress CM shall return to power. Chief Justice Joseph( as he then was ) said that the Court was "pained" by the Centre's actions in the case on imposition of President's Rule in Uttarakhand.

The Uttaranchal High Court said: "At any rate, we may also notice that this solitary instance (Money Bill), which is seized upon, may not justify the imposition of President's Rule. On 26.03.2016, when the Cabinet made the recommendation, the question was whether the Government could be carried on. The last date for the assent on the Money Bill was 31.03.2016. So, there is a case for the petitioner that, even though the Money Bill was not dispatched immediately, if the President's Rule had not been imposed on 27.03.2016, there would have been nothing in the way of the Money Bill being given assent to when it had reached, admittedly, on 28.03.2016.We must not be understood as saying that, in no circumstances, a solitary event cannot provide material for successful invocation of Article 356"^[9].

Double Whammy

The Uttaranchal High Court accepted the argument that the order for President's rule was a "double whammy" on the powers of the Speaker and the Governor, and commented: "On 26.03.2016, apparently, the Governor writes; the Cabinet, apparently, meets on the basis of the same in the night on the same day; the proceedings for disqualification were to culminate on 27.03.2016; and the floor test was to take place on 28.03.2016. Therefore, we cannot brush aside the argument of Abhishek Manu Singhvi, learned senior counsel for the petitioner, that this is an extra-ordinary case and first time in the history of India, by action under Article 356, there is a double whammy by hitting at the authority of the speaker under the Tenth Schedule, as also the Governor, who had fixed the date of floor test as 28.03.2016. This is for the reason that the effect of the notification under Article 356 is that it prevents the holding of the floor test on 28.03.2016, as ordered by the governor, and also appears to cloud the authority of the speaker.^[10]"

The HC Bench finally ordered: The Central government, which should be impartial, was acting like a "private party", …….Article 356 has been used contrary to the law laid down by the apex court….In the light of this, necessarily, the proclamation dated 27.03.2016 issued under Article 356 will stand quashed...we further direct that status quo, as on the date of the proclamation, must necessarily be restored. This means that the government led by the petitioner (ousted chief minister Harish Rawat) will revive."

Pulling Down Another State

It's a tragedy that the Union Government did not hesitate to pull down one more state Government within months after Supreme Court restored the Uttarakhand Chief Minister who was victim of defections and defective actions of Governor. Within months history repeated.

In Arunachal Pradesh, during November 2016, 20 Congress MLAs rebelled against Chief Minister Nabam Tuki. Then 33 members (20 rebel Congress, 11 BJP and 2 Independent MLAs) met the Governor, who without the advice of the Chief Minister, advanced the Assembly session from 14th January 2016 to 15th December 2015 and listed the removal of the Speaker on the legislative agenda. Meanwhile the Speaker, Nabam Rebia, disqualified the rebel MLAs on the grounds of defection, before the Assembly could meet. Thereafter, holding an advanced Assembly session in a different place than the Assembly building, the Deputy speaker has removed the Speaker, and immediately dismissed Nabam Tuki government also.

Guwahati High Court On Governor

The Guwahati High Court on 5th January, 2016 stayed the disqualification of Congress MLAs. The Speaker appealed to the Supreme Court. The Constitutional Bench of five judges examined whether the Governor can advance the Assembly Session. In its unanimous decision on 13th July 2016 Supreme Court held that the Governor does not enjoy wide discretionary powers and is always subject to constitutional standards, and 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 consulting the Chief minister or the Speaker. The Court also criticised that the Speaker Rebia's decision to disqualify rebel MLAs was an attempt to overcome voting by 'all the then members' was unconstitutional. The bench advised that the Governor must remain aloof from any disagreement, discord, disharmony, discontent or dissension, within individual political parties.

Even as the case was being heard, the Union government has dismissed the State government and imposed President's rule on 26th July 2016. The Court effectively nullified President's rule and restored the previous State government with Nabam Tuki as Chief Minister on 13^th July 2016. However, Chief Minister Tuki was soon voted out of power in a floor test and the Court's decision was reversed through political means.

The Supreme Court's five-judge Constitution Bench led by then Chief Justice J.S. Khehar in the Nabam Rebia judgment of 2016^[11] ruled that Article 163 does not give Governors a "general discretionary power" as is often misunderstood. "The area for the exercise of his (Governor) discretion is limited. Even this limited area, 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," the Constitution Bench, of which the current Chief Justice Dipak Misra was a part of, held.

Governor Removed

The Centre asked Governor to step down on 'health grounds', but Rajkhowa refused. Media channel reported that Governor said: "I want President to dismiss me". Thus, Arunachal Pradesh Governor Jyoti Prasad Rajkhowa sacked the Chief Minister, and then he was sacked by the President.

We need to refer to the Supreme Court's verdict in B.P. Singhal v. Union of India^[12] on the subject of arbitrary removal of Governor before the expiration of their tenure, and the interpretation of Article 156 of the Constitution. The apex court made a crucial suggestion that a fixed tenure for Governors could go quite a long way in promoting neutrality and fairness in fulfilling their duties, irrespective of the dispensation at the Centre.

The Governors should believe that they are not subordinate servants of the Union Home Minister, but independent heads of states as per the Constitution^[13]. A decade ago, the Justice Madan Mohan Punchhi Commission emphatically recommended that for office of Governor, the doctrine of pleasure should end and should be deleted from the Constitution. Governor should not be removed at whim of central government. Instead, a resolution by state legislature should be there to remove Governor. The Punchhi suggested that the person who is slated to be a Governor should not have participated in active politics at even local level for at least a couple of years before his appointment. The Sarkaria Commission in 1988, in its Volume 1 (4.16.01 of Volume I of the Sarkaria Commission Report) recommended that the candidate for Governorship should be eminent in some walk of life, a person from outside the State, should be a detached figure and not too intimately connected with the local politics of the State, he should be a person who has not taken too great a part in politics generally.

Review Commission

The National Commission for Review of Working of the Constitution NCRWC, in 2002 strongly recommended that the Governor of a State should be appointed by the President only after consultation with the Chief Minister of that State. Normally the five-year term should be adhered to and removal or transfer should be by following a similar procedure as for appointment i.e. after consultation with the Chief Minister of the concerned State^[14]. The powers of the President in the matter of selection and appointment of Governors should not be diluted.

But the successive Governments at Centre including BJP Governments, not only ignored the recommendations of these Commissions, but acted against.

Recommendations have also been given by the Administrative Reforms Commission (1968) and Rajamannar Committee (1971) which were not acted upon. For instance, the consultation with Chief Minister before a Governor is chosen. West Bengal Chief Minister Mamata Banerji said that she was not consulted before appointing Jagdeep Dhankar as Governor and requested thrice the Centre to withdraw this Governor. The MPs wrote to President also^[15].

These recomvWB Governor Jagdeep Dhankharmendations were not incorporated into the Constitution by any amendment, because no party is ready to drop the instruments of ruling states through arbitrary decisions, to throw out the democratically elected governments. But the courts have converted almost all of these points as ratio decidendi, in several land mark cases like S R Bommai.

Should We Remove Governors From Constitution?

One suggestion came up is to remove the position of Governor from the scheme of administration under Constitution. The view opposite to it is that like President is needed at the national level, a head in each state also is a formal requirement. Relook into the role of President or Governors may be required. The Governors should know why such position is created, that was explained by the apex court in S.R. Bommai^[16] (1994), saying that "the office of the Governor is intended to ensure protection and sustenance of the constitutional process of the working of the Constitution by the elected executive."

The proposals like selection of eminent persons only, transparency in appointment, discussion with the Chief Minister before sending a head to this state, fixing accountability for the Constitutional wrongs, or for breach of oath taken, according power to impeach Governor to the legislative assembly of state with certain conditions should be widely discussed in the entire country. The recommendations of the various commissions and judicial pronouncements should be adhered to both by the Central power players and Governors. If the Governors are interfering with the structure of Parliamentary Democracy, they alone cannot be blamed for that, because they are under such pressure from the rulers in Delhi.

The Author is the Dean, School Of Law, Mahindra University, Hyderabad And former Central Information Commissioner. Views are personal.

[2] https://www.deccanherald.com/national/east-and-northeast/west-bengal-governor-dhankar-vs-mamata-a-continuous-battle-of-will-1067098.html.January 2, 2022