Governor

Appointment

• There is lack of specific provisions related to the appointment of a Governor in the Constitution.
• For instance, apart from the provision that he should be a citizen of India having completed the age of thirty five years, there is no other provision regarding his appointment.
• This is taken advantage of by the central government to appoint loyalists and retired politicians.
• For example, former Delhi CM Sheila Dikshit was immediately made the Governor of Kerala after her defeat in the legislative assembly elections of 2014 as a reward for her contribution to her political party.

Misuse of position

• The misuse of the office of the Governor for political purposes started as early as in 1952, when the Governor of Madras was accused of acting inappropriately when he invited C. Rajagopalachari to form the government even though he wasn’t an elected member of the assembly and had not participated in the elections.
• According to statistics, the position of Governor has been misused in various states 115 times from 1951 to 2016 to dismiss duly elected governments.

Acting as an agent of the centre

• There is an abuse of the position of Governor usually at the behest of the ruling party at the Centre.
• The post has been reduced to being a retirement package for politicians faithful to the centre.
• As a result, the Governor sends motivated, distorted and partial reports to the Central government with the intention to hamper the functioning of the state government and ultimately get rid of them.
• For example, the Governor of Rajasthan appealed to people to re-elect the incumbent Prime Minister in the General Elections of 2019, which is against the spirit of non-partisanship that is expected from the person sitting on constitutional posts.

Constitutional ambiguity

• The Constitution does not mention the qualification apart from citizenship and age of a person to be appointed as a Governor, which is manipulated by the ruling party at the Centre to nominate candidates of their choice.
• As a result, most of the Governors have a political background affecting their decision making.

Disregard for convention

• Earlier, there was a healthy convention of consultation between the Home Minister and  the Chief Minister of that particular state prior to the appointment of the Governor.
• This convention has been disregarded in recent times process as consultation has been replaced with informing the Chief Minister.
• Sometimes, even this prior intimation is not given.

Arbitrary removal

• The Governors of various states are arbitrarily removed whenever there is a change of government at the centre because unlike the President there is no provision for the impeachment of the Governor.
• For instance, in1989, the V.P Singh government asked all the Governors appointed by the previous government to resign.

Reservation of bills for the President’s consideration

• The provisions of Article 239AA (4), mandates that in case of a difference of opinion between the L-G and the Council of Ministers, the former has to refer the issue to the President.
• In the meantime, while that decision is pending before the President, the L-G, if the matter is urgent, can use his discretion to take immediate action.
• The Lt. Governor of Delhi misused this provision to take administrative decisions and deprive the state assemblies of their legislative rights.
• However, the Supreme Court in Government of NCT of Delhi vs Union of India (2017), declared that the Lt. Governor has to work on the aid and advice of the Council of Ministers and the power to refer any matter to President does not mean every matter.

Misuse of Article 356

• In a number of situations of political instability in the State, the Governors recommend President’s rule under Article 356 without exhausting all possible options.
• This power is exercised to dismiss the state government controlled by a political party opposed to the ruling party at the centre.
• The Sarkaria Commission (1998) notes that since Independence, Article 356 has been misused a 100 times.

Democracy

• A democracy makes sure that it is the party voted in power that represents the mandate of the people.
•  The misuse of the office of Governor by assuming autocratic powers goes against this mandate of the people.

Federalism

• The Indian Federalism provides for the separation of powers between the centre and the states.
• It provides autonomy to the states to administer areas in the state list without any interference from the centre.
• The government at the centre interferes in the state administration through the Governor, as the Governor is appointed by the President on the aid and advice of the central government.

Centre-state relations

• The Article 355 of the Constitution puts an obligation on the centre to protect every state against external aggression and internal disturbance and to ensure that the government of every state is carried on in accordance with the provisions of the Constitution.
• However, the Governor interferes in the administration of the state government. The misuse of the post of the Governor to serve the purposes of the central government creates a trust deficit in the centre-state relations.

Administration

• When the Governors act on the advice of the central government, they try to run a parallel administration by taking administrative powers in their own hands.
• This deprives the state assemblies of their legislative rights and also paralyzes the state administration.

Public trust

• The frequent removals and transfer of Governors before the end of their tenure for political reasons, have lowered the prestige of this office.
• This results in ineffective functioning of the office of the governor and as a result, public trust is eroded in the Constitutional post of the Governor.

Arguments in favour

Argument against

• The post of the Governor has become reward postings for retired and loyal politicians.
• The Governors have become the agents of the centre and misuse their constitutional position for the advantage of the central government.
• Rather than serving the state, the Governors are largely seen as creating hindrances in the administration of the state.
• They paralyze the government by misusing the provision of Article 201 wherein they reserve bills for the consideration of the President and deprive the state legislative rights.
• There is no constitutional provision regarding the removal of the Governor such as the impeachment of the President, which is taken advantage of by the Central government.
• Without any accountability or effective administrative powers, it is seen as a burden on the exchequer.

• Misuse of position should not serve as a justification for removing the post of Governor because he plays a significant role in the administration of the state.
• The most important function of the Governor lies in the formation of the state government where he calls the party with the largest number of seats to form the government.
• The  Governor acts  as a crucial link within the federal structure in maintaining effective communication between the Centre and states.
• The role of Governor is important because as a figurehead he ensures the continuance of governance in the State, even in times of constitutional crisis such as promulgating ordinances.
• His role is often that of a neutral arbiter in disputes settled informally within the various strata of government.
• Instead of abolishing the post of the Governor, there should be some checks and balances on their arbitrary functioning and change the appointment process.

Case

Judgement

Samsher Singh vs the state of Punjab (1974)

• The exercise of discretion by the governor should be in concurrence and harmony with the Council of Ministers.
• He should not take decisions against the wishes of the Council of Ministers.

S.R Bommai vs Union of India (1994)

• It is one of the historic cases that dealt with the issue of arbitrary dismissal of state governments under Article 356.
• The Karnataka Governor in 1989, refused to allow the democratically elected Chief Minister to prove his majority on the floor of the Assembly and this led to the imposition of President’s rule under Article 356.
• The verdict ruled that the floor of the Assembly is the only forum that should test the majority of the government of the day, and not the subjective opinion of the Governor.
• It also stated that the Governor’s report regarding the proclamation of President’s Rule in a state in the wake of breakdown of Constitutional machinery is subject to judicial review.

PU Myllai Hylchho and Ors vs the state of Mizoram  (2005)

• The judgement categorically laid down that  the Governor is a Constitutional or formal head of state and he exercises all his powers and functions on the aid and advice of the Council of Ministers.
• It also said that, the satisfaction of the Governor for the exercise of any power or functions is not personal satisfaction but satisfaction as per the provisions and ideals of the Constitution.

Rameshwar Prasad and Ors vs Union Of India (2006)

• This case determined that discretion of the Governor can be judicially reviewed by the Supreme Court.

B.P Singhal vs Union of India (2010)

• The Supreme Court ruled that even though the President could dismiss a Governor without having to provide reasons for doing so, this power could not be exercised in an “arbitrary, capricious or unreasonable manner”.
• A change in central government cannot be a ground for removal of Governors, or to appoint more favourable persons to this post.

State of Arunachal Pradesh vs Nabam Rebia (2016)

• The Supreme Court  ruled that Article 163 does not give Governors a general discretionary power and he is  bound by the aid and advice of the elected Council of Ministers.
• He cannot take steps relating to disqualification of the Speaker.
• He is barred from unilaterally sending messages to the Assembly on any matter.
• Governor has no power to summon an Assembly session unless the Government has lost its majority.

Committees

Recommendations

First Administrative Reforms Commission (1966)

• Appointment: Governor should have long experience in public life and administration and politically neutral.
• Retired Judges should not be appointed as Governors and the Chief Minister may be consulted before his appointment.
• Discretion: Guidelines must be formulated regarding the exercise of discretionary powers by the Governors duly approved by the Inter-State Council and the central government.
• The Governor should act on his own judgement and discretion in matters relating to submission as well as on reservation of bills for the consideration of the President.

Sarkaria Commission Report (1988)

• Appointment: Governor should be an eminent person, not belonging to the same state.
• A person belonging to a minority group should be given preference.
• It recommended that a politician from the ruling party at the Union level should not be appointed as a Governor of a state run by some other political party.
• It recommended the amendment of Article 155 prescribing the procedure of consultation with the state chief Minister in the selection of a person as Governor.
• Removal: Governors must not be removed before completion of their five year tenure, except in rare and compelling circumstances.
• It provided for an order of preference to be followed by the Governor to deal specifically with the situation where no single party obtained a majority.

National Commission to review the working of the Constitution (2002)

(Venkatachaliah Commission)

• Appointment: It reiterated Sarkaria Commission recommendations regarding the qualifications of a person to be appointed as the  Governor.
• It recommended setting up of a time limit of six months for the Governor to give his assent to a bill or reserve it for the consideration of the President.
• The Governor should not be allowed to dismiss the state government  as long as it enjoys the support and confidence  of the Legislative assembly.
• Removal: If governor to be removed before completion of term, the central government should do so only after consultation with the Chief Minister.

Punchhi Commission  (2010)

• Appointment: As a qualification for the Governor, it suggests that the person should not have participated in active politics at even local level for a couple of years before his appointment.
• It recommended the deletion of the doctrine of pleasure of the President from the Constitution.
• Removal: Governor should be removed only by the resolution of the state legislature.
• It also opined that there should be provisions for the impeachment of the Governor by the state legislature along the same lines as that of the President.
• It also suggests that the Governors should have the right to sanction the prosecution of a minister against the advice of the council of ministers.