Office of Governor- Issues and Suggested Reforms- Explained Pointwise

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. The recent political controversies between Governors and State Government pose challenge to the functioning of the federal structure as envisaged in the Constitution. These also tarnish the standing of the dignified Constitutional post.

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

What is the history and rationale behind the office of Governor?

What are some of the important Constitutional Provisions Related to the office of Governor?

What are the Issues Related to the Post of Governor in India?

1. Affiliation Based Appointment- Politicians and former bureaucrats affiliated with the ruling party have been appointed in several instances as Governors. This has led to questions about the post’s impartiality and non-partisanship.

2. Arbitrary Removal of Governors- There are no written grounds or procedures for removing governors. This leads to arbitrary removals especially when there is change of political power at the Union Govt. level.

3. From Centre’s Representative to Centre’s Agent- The governors have become the ‘agents of the Centre’ as they are appointed and removed by the Central Government.

4. Governor recommending President’s Rule- The discretionary power of governor recommending president’s rule on account of the failure of constitutional machinery in the state has has not always been based on ‘objective material’. Political partisanship, whims and fancies have also played their part.

5. No Clear Distinction Between Constitutional and Statutory Role- The constitutional mandate of the Governor to act on advice of the council of ministers is not clearly distinguished from his statutory authority as chancellor. This has resulted in many conflicts between the governor and the state government. For ex- The was a recent appointment of a Vice Chancellor in a university by the Kerala Governor, bypassing government nominations has caused a conflict.

6. Misuse of Discretionary power of appointment of CM- The Office of governor has been accused of playing a partisan role in the appointment of CM in cases where a single party lacks the majority.

7. Convening and Dissolution of Assembly- The Office of Governor has been associated with the politics of delay in the convening and dissolution of state legislative assembly.

8. Delay in giving assent to the Bills- There is no time limit set for how long a Governor can withhold assent to a Bill. This has been misuded by the Office of the Governor to withhold assents to Bills passed by the State legislative Assemblies.

What are the Constitutional Reforms suggested by Various Committees and Supreme Court?

Various Rulings of the Supreme Court arranged in Chrnological Order-

1. 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.

2. 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.

3. Rameshwar Prasad vs. Union of India (2006)- The Supreme Court held the Governor’s decision to dissolve the Assembly as unconstitutional and mala fide. Motivated and whimsical conduct of the Governor in recommending president’s rule is amenable to judicial review.

4. BP Singhal vs Union of India (2010)- The SC held that the removal of Governor cannot be based on arbitrary, capricious or unreasonable grounds.

5. 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 (Article 174 is related to the Sessions of the State Legislature, prorogation and dissolution). Hence, the Governor could not summon the House, determine its legislative agenda or address the legislative assembly without consultation.

Recommendations of Various Commissions in Chronological Order

1. 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.

2. 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.

3. National Commission to Review the Working of the Constitution (NCRWC), 2002- 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.

4. The Second Administrative Reforms Commission (ARC), 2008- The Inter-State Council needs to come up with some guidelines for governors to follow when they are using their discretionary power.

5. 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.

Conclusion

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. Certain codification can be undertaken regarding discretionary powers like 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.