7 PM | All the President’s men | 11th September, 2019

Context: The debate around the office of the Governor, its appointments, removal and processes involved.

More in news:

• Recently 5 new governors have been appointed. Arif Mohammed Khan has been appointed as Governor of Kerala, Kalraj Mishra will be the Governor of Rajasthan. Bandaru Dattatreya has been appointed as Governor of Himachal Pradesh while Bhagat Singh Koshyari appointed as Governor of Maharashtra. Tamilisai Soundararajan has been appointed as Governor of Telangana.
• All the nominated persons are deeply embedded within the Bharatiya Janata Party ecosystem.

Governor:

• The Governor is the head of a state just like the President is the head of the republic. The Governor is the nominal head of a state, while the Chief Minister is the executive head.
• All executive actions of the state are taken in the name of the Governor. However, in reality he merely gives his consent to the various executive actions. The real powers in the executive dealings of a state rest with the Chief Minister and the Council of Ministers.
• According to an amendment in the Constitution of India, brought about in 1956, the same person can be the Governor of two or more states.
• Apart from the governors in the states, Lieutenant governors are appointed in Union Territories of Delhi, Andaman Nicobar Island and Pudducherry.
• All other union-territories are governed by an Administrative Head (an IAS officer).
• The only exception is Chandigarh. The governor of Punjab is also the lieutenant governor of Chandigarh.
• The powers of the Lieutenant Governor of a union-territory are equivalent to the powers of a Governor of a state in India.
• Both are appointed by the President of India for a term of 5 years.

Appointment of Governor:

• The governor is neither directly elected by the people nor indirectly elected by a specially constituted electoral college as is the case with the president.
• He is appointed by the president by warrant under his hand and seal. In a way, he is a nominee of the Central government.
• But, as held by the Supreme Court in 1979, the office of governor of a state is not an employment under the Central government. It is an independent constitutional office and is not under the control of or subordinate to the Central government.

In the Constituent Assembly there was a proposal that the Governor should be elected by the people, instead of his being nominated or indirectly elected by the President. But the proposal was turned down by the Assembly on two important grounds:

1. It will be difficult to have any workable division of powers between the Governor and the Chief Minister, when both have been elected by the people and enjoy people’s verdict.
2. In the country at that time, atmosphere was likely to prevail in the states in which disintegrating forces were likely to play their role.

In order to check these it was essential that the Governors should be powerful persons free from the mud slugging of elections and above appeasement policy of the electorates.

Removal of Governors:

• As per Article 155 and Article 156 of the Constitution, a Governor of a state is an appointee of the President, and he or she holds office “during the pleasure of the President”. 
• If a Governor continues to enjoy the “pleasure of the President”, he or she can be in office for a term of five years.  
• Because the President is bound to act on the aid and advice of the Council of Ministers under Article 74 of the Constitution, in effect it is the central government that appoints and removes the Governors. “Pleasure of the President” merely refers to this will and wish of the central government. 

B.P. Singhal vs Union of India (2010):

A constitutional bench of the Supreme Court interpreted the above mentioned provisions related to governors and laid down some binding principles. The Supreme Court held:

• The President, in effect the central government, has the power to remove a Governor at any time without giving him or her any reason, and without granting an opportunity to be heard.
• However, this power cannot be exercised in an arbitrary, capricious or unreasonable manner. The power of removing Governors should only be exercised in rare and exceptional circumstances for valid and compelling reasons.
• The mere reason that a Governor is at variance with the policies and ideologies of the central government, or that the central government has lost confidence in him or her, is not sufficient to remove a Governor.  Thus, a change in central government cannot be a ground for removal of Governors, or to appoint more favourable persons to this post.
• A decision to remove a Governor can be challenged in a court of law.  In such cases, first the petitioner will have to make a prima facie case of arbitrariness or bad faith on part of the central government.  If a prima facie case is established, the court can require the central government to produce the materials on the basis of which the decision was made in order to verify the presence of compelling reasons.

Recommendations of Various Commissions: Three important commissions have examined this issue.

• Sarkaria Commission (1988): 
  • The Commission had stressed that the honour and prestige of the office of Governor could be maintained only when “eminent” individuals from outside the state with no “vested” interests, were appointed to the post.
  • The procedure of consulting the chief minister in the appointment of the state governor should be prescribed in the Constitution itself.
  • It recommended that Governors must not be removed before completion of their five year tenure, except in rare and compelling circumstances. This was meant to provide Governors with a measure of security of tenure, so that they could carry out their duties without fear or favour. 
  • If such rare and compelling circumstances did exist, the Commission said that the procedure of removal must allow the Governors an opportunity to explain their conduct, and the central government must give fair consideration to such explanation.  
  • It was further recommended that Governors should be informed of the grounds of their removal.
• Venkatachaliah Commission (2002): 
  • It recommended that ordinarily Governors should be allowed to complete their five year term. 
  • If they have to be removed before completion of their term, the central government should do so only after consultation with the Chief Minister.
• Punchhi Commission (2010):
  • While selecting Governors, the Central Government should adopt the following strict guidelines as recommended in the Sarkaria Commission report and follow its mandate in letter and spirit :
    • 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 too intimately 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
  • It suggested that the phrase “during the pleasure of the President” should be deleted from the Constitution, because a Governor should not be removed at the will of the central government; instead he or she should be removed only by a resolution of the state legislature.
  • The above recommendations however were never made into law by Parliament. Therefore, they are not binding on the central government.

Source:https://www.thehindu.com/opinion/op-ed/all-the-presidents-men/article29385636.ece