Role of a Governor and related issues | Timeline

“Explained: Governor’s powers, friction with states, and why this happens often” – Indian Express – 10th Feb 22

Dismissal of state governments: Kerala’s government was dismissed based on a report by the Governor. Several state governments have been dismissed since then, including 63 through President’s Rule orders issued by Governors between 1971 and 1990.

J&K Governor in 2018: dissolved the Assembly amid indications that various parties were coming together to form the government. This paved the way for the Centre to later bifurcate the state into two Union territories, by considering the Governor as the government.

Maharashtra Governor in 2019: quietly invited BJP leader and administered him oath as CM. This government lasted just 80 hours. Six months later, the governor refused to nominate CM to the Legislative Council.

Kerala Governor in 2020: turned down a request to summon a special sitting of the Assembly to debate the three central farm laws.

In another incident in Dec 2021, Kerala Governor, who is also the Chancellor of universities, sent a strongly-worded letter to Chief Minister urging him to amend the Acts of the Universities to enable him assume the position of the Chancellor.

Some Raj Bhavans are on the war path” – The Hindu – 10th Jan 22

Maharashtra: Governor refused to accept the date of election of the Speaker recommended by the State government.

However, this refusal goes against the principle of constitutional government. Under Article 178, the constitution did not assign any role to the governor in the election of the speaker. It is the house rule which says the governor shall fix the date. So, if the governor refused to accept the date of the election, the house can make amendments to that particular rule which empowers the governor to fix the date. It is the first time in the history that governor refused to fix the date of the election and so the election has not been held

Kerala: Governor alleged that he made the reappointment of Vice-Chancellor of Kannur University under the pressure of the Kerala government. Although, the reappointment has been done in accordance with the law. Further, the governor said that he does not want to hold the position of chancellor, which he got in an ex officio capacity.

This move has been in question as here the governor was not required to act on the advice of the Council of Ministers, also clarified by Supreme Court in Gopalakrishnan vs Chancellor, University of Kerala case. Here the governor can act independently, and make the choice considering the merit of the appointee before signing the appointment letter.

Other instances have been witnessed in other states like West Bengal, Rajasthan etc where the differences have been visible.

“Lines and roles: On Governors” – The Hindu – 3rd March

It is to be noted that the powers of the governor are limited by the ‘aid and advice’ clause, given in the constitution.A Constitution Bench of the Supreme Court laid down in 1974 that the President and Governor shall exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations.

Exceptional situations are also illustratively listed

“Explained: Governor’s powers, friction with states, and why this happens often” – Indian Express – 10th Feb 22

He can withhold assent to a Bill passed by the state legislature, can determine the time needed for a party to prove its majority, or which party must be called first to do so.

However, there is no provision on how the Governor and the state should engage publicly when there is a difference of opinion.

Discretionary powers of a Governor

EPIC Magazine – Jan 22

The discretionary powers are two-fold: Constitutional (expressly mentioned in the Constitution) and Situational.

• Constitutional: (1) Reserving a Bill passed by the Legislative Assembly for the consideration of the President; (2) Recommending President’s Rule in the State; (3) Certain functions with respect to Schedule VI States (Assam, Meghalaya, Tripura, Mizoram); (4) Seeking information from the Chief Minister on legislative and administrative matters; (5) While holding additional charge of a Union Territory.
• Situational: (1) Appointing the Chief Minister when no party has a clear majority; (2) Dismissal of Council of Ministers when unable to prove confidence of the Legislative Assembly; (3) Dissolution of Legislative Assembly when the Council of Ministers loses majority.

“Some Raj Bhavans are on the war path” – The Hindu – 10th Jan 22

Before independence, the governor was the absolute ruler of the province, who was answerable only to His Majesty.

B.R. Ambedkar, while framing the constitution, ensured to make governor only a constitutional head and to vest executive powers in the elected government. But, at the same time, certain discretionary powers have been allotted to the government to ensure independence.

The powers of government in the constitution create some ambiguity.

Article 163, which was simply re-produced from section 50 of the Government of India Act in 1935, introduced vagueness about the actual powers of the governor. This was corrected by the Supreme Court of India in Shamsher Singh (1974) case and later in Nabam Rebia (2016). The courts have held that the executive power of the governor can only be exercised with aid and advice of the council of ministers, except in exceptional circumstances.

EPIC Magazine – Jan 22

1. Nabam Rebia vs Deputy Speaker And Ors (2016): The Supreme Court confirmed that (a) the Governor does not enjoy wide discretionary powers, the powers are subject to constitutional standards and discretionary actions should not be arbitrary; (b) The SC concluded that the Governor’s discretion did not extend to the powers conferred under Article 174 and hence he could not summon the House, determine its legislative agenda or address the legislative assembly without consulting the Chief minister or the Speaker; (c) The SC also noted that the framers of the Constitution expressly and consciously left out vesting powers to summon or dissolve the House solely with the Governor.
2. Harish Chandra Singh Rawat vs Union Of India (2016): The Supreme Court ruled that when the majority of the ruling party is in question, a floor test must be conducted at the earliest available opportunity and the Governor can’t recommend President’s rule arbitrarily. Under no other circumstances can the Governor act without aid and advice. This is reiteration of the SC’s earlier stand in SR Bommai (1994) and numerous other cases.
3. Rameshwar Prasad And Others v. Union of India (2006): The Supreme Court held that the immunity granted to the Governor under Article 361 (1) does not affect the power of the Supreme Court to judicially scrutinize the use of powers on the ground of mala fides and being ultra vires

“Lines and roles: On Governors” – The Hindu – 3rd Mar 22

– Some Governors use discretionary powers available to them to control the state governments. There have been many instances of some Governors not acting upon requests to grant clemency or assent to Bills. For instance, in Tamil Nādu, governor showed the reluctance to reserve the bill for President’s consideration, even though the bill expressly required so.

– Article 163 empowers Governors to choose what is in their discretion and what is not.

– The Constitution does not set any time frame for Governors to act on the requests of state government.

– Constitution bars Courts from enquiring into acts of Governors.

“Explained: Governor’s powers, friction with states, and why this happens often” – Indian Express – 10th Feb 22

Political appointees: According to a constitutional expert, although the Constituent Assembly envisaged the governor to be apolitical. But the truth is, politicians, become Governors and then resign to fight elections.

Answerability: The CM is answerable to the people. But the Governor is answerable to no one except the Centre. This is the fundamental defect in the Constitution.

No Impeachment provisions: There is no provision for impeaching the Governor, who is appointed by the President on the Centre’s advice. While the Governor has a 5-year tenure, he can remain in office only until the pleasure of the President.

No guidelines: There are no guidelines for the exercise of the Governor’s powers, including for appointing a CM or dissolving the Assembly. There is no limit set for how long a Governor can withhold assent to a Bill.

“Lines and roles: On Governors” – The Hindu – 3rd Mar 22

Provisions relating to the Governor’s role should be amended to make the following changes:

– Identifying areas of discretion,

– fixing a time-frame for them to act, and

– Cabinet advice should be mandatory to act upon in dealing with Bills.

M.M. Punchhi Commission’s recommendation of ending the practice of burdening Governors with the office of Chancellor in universities should be implemented

Handling disagreement b/w Governor and Chief Minister

“Explained: Governor’s powers, friction with states, and why this happens often” – Indian Express – 10th Feb 22

The two heads can have different perspectives but should maintain the dignity of their constitutional positions. It has been seen the governor and chief ministers on social media openly expressing disagreement with each other. The consultations between the governor and CM’s should be serious and in case of conflict, the elected government should prevail.

Sometimes it may be possible that the governor and people are on the same view – as expressed by former President K R Narayanan. But even in these matters governor should not talk over the head of government or behind the government to the people.

Other suggestions:

EPIC Magazine – Jan 22

– The Supreme Court Judgments have made it clear that as long as the Council of Ministers (CoM) enjoy the confidence of the Assembly, the Governor can’t act without the aid and advice of the Chief Minister and the CoM. The SC has observed that a Governor must remember he is not a democratically elected representative. The judgments are guiding directions to the Governors to act dispassionately and disassociate themselves from the political affiliations once they assume the constitutional post.

– There is a need to de-politicize the Office of Governor. Puncchi Commission had recommended – (a) A fixed tenure of 5 years; (b) Removal of Doctrine of Pleasure; (c) Appointment of the Governor through a Committee of the Prime Minister, the Home Minister, the Lok Sabha Speaker and the Chief Minister of the State. The recommendations should be implemented in true spirit

“Some Raj Bhavans are on the war path” – The Hindu – 10th Jan 22

It’s seen that the confrontation takes place only in opposition-ruled states, which shows that political expediency has overtaken constitutional propriety. The governor should work in an impartial manner and should not try to create a parallel government.

In the words of Pandit Thakur Das Bhargava, “the governor will be a man above party, and he will look at the minister and government from a detached standpoint”