The Office of Governor- A Critical Appraisal

Context:

The recent developments after Assembly election in Karnataka have brought the focus back on role and functions of governors in India.

Governor and his/her Appointment

• The governor is head of the state.
• The governor is neither directly elected by the people nor elected a specially constituted electoral college.
• The governor is directly appointed by the President. Thus, he is considered to be a nominee of the Central government.
• The post of the governor is a constitutional post and not an employment under the Central government.
• The term of the
• Governor is prescribed as five years. However, the governor is allowed to hold office at the will of the President.
• The only qualifications for appointment as Governor are that he should be a citizen of India and must have completed the age of thirty-five years.

Important Constitutional Provisions:

1. Article 153: It requires a governor to be appointed for every state in India.
2. Article 154: Vests the executive power of the State in the Governor
3. Article 155: Appointment of the Governor
4. Article 156: Term of Office of Governor
5. Article 157: Qualifications for appointment as Governor

Important Powers/ Functions of the Governor

Executive

1. Appointment of:

• Chief Minister, other ministers (on the recommendation of the Chief Minister),
• Advocate General of state, State Election Commissioners, chairman and members of state public service commission,
• Tribal Welfare minister in Chhattisgarh, Madhya Pradesh, Jharkhand and Odhisa

2. Recommends imposition of constitutional emergency in the state

Legislative:

• Summon, prorogue or dissolve the state legislature
• Provide assent to bill
• Issue of ordinance
• Nominate- 1/6^thmember of the state legislative council and 1 member to state legislative assembly of Anglo-Indian community.

Judicial: Grant of pardon and appointment of judges in high court

Financial: Recommending introduction of money bills, advancing out contingency fund, constituting finance commission in state

Discretionary:

• Selection of Chief Minister
• Dismissal of Ministry
• Dissolution of legislative assembly
• Advising the President for the Proclamation of the Emergency
• Special powers in the context of 5^th and 6^th Schedule

Constitutional Assembly Debates

Government of India Act, 1935: Abolished diarchy and introduced provincial autonomy. However, in order to ensure that the powers remained with British, the Act retained the post of Governor and provided him with “special responsibilities”. This was basically allowing him to intervene at will.

Key debates in the Constitutional Assembly centred on appointment and powers of the Governor

Appointment:

1. Memorandum of the Constitutional Advisor to the Constituent Assembly and the Report of the Provincial Constitution Committee proposed an ‘elected Governor’ with security of tenure and discretionary special responsibilities
2. However, this was highly criticised on the grounds that elected Governor will be another centre of political power and potential source of tensions between the elected chief minister and elected Governor
3. Another proposal stated that Governor to be elected by the Legislative Assembly of the State, the system which was adopted in wrt State of Kashmir initially.
4. However, this was proposal was rejected on that basis that in such a situation the Governor would be controlled by the largest party and his impartiality would be in question
5. Governor appointed by Union Government was the most feasible option and thus the Constituent Assembly rejected all other proposals on appointment of the Governor.

Powers:

1. It was argued that the articles dealing with the powers of the Governor were almost exact reproductions of the 1935 Act.
2. Defenders justified it by providing two arguments:

• There was a dearth of competent legislators in the States
• A minimum centralisation of power was necessary as India had just started evolving

It was finally assured that the post of Governor will remain constitutional post and would not undermine the essence of federalism

Should the office of Governor be abolished?

Arguments for:

1. Colonial imprint
2. undermines the essence of federalism; since governors are appointed by the President (in a sense the Union government) it leads to centralization of power
3. Office of governor highly politicised- Functions as political tools of the government in power at the Centre.
4. Misuse of discretionary power:

Examples:

• In 1952, Madras Governor invited Congress to form government instead of UDF who had majority seats
• In 2016, when Governor of Arunachal Pradesh decided to advance assembly elections which lead to political crisis in the state and consequent President Rule
• Recent case in Karnataka post assembly elections.

4. Burden on exchequer
5. No accountability and effective administrative powers

Arguments against

1. Post of governor is a vital link between the Centre and the States
2. Crucial in smooth functioning of democracy
3. Maintenance of national interests, integrity and internal security advocates central supervision for which the governor is required.

Important Supreme Court Judgements:

1. Bommai vs. Union of India, 1994

• The case was about the limits to the Governor’s powers in dismissing a state government under Article 356 of the Constitution
• 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

Relevance in current political scenario in Karnataka: The court asserted that the only relevant forum to test the majority of the government of the day is on the floor of the house. The opinion of the Governor does not matter.

Rameshwar Prasad Case, 2006: Supreme Court was called upon to pronounce its verdict on the validity of the proclamation of President’s Rule and the dissolution of the Assembly in Bihar in 2005. The SC held that the Governor could not decide based on his subjective assessments

Nabam rebia case- Arunachal Pradesh, 2016:

• Governor is not an elected representative, but only an executive nominee whose powers flow from the aid and advice of the Cabinet.
• Using discretionary powers to summon or dissolve Assembly sessions without the aid and advice of the Chief Minister and his Cabinet is unconstitutional

Recent Karnataka case, 2018: SC observed that Governor’s discretion cannot be arbitrary or fanciful

Major Committees / Commissions and Recommendations

Administrative Reforms Commission (1968)

On power- Proclamation of Emergency

• Report of the Governor regarding President’s Rule has to be objective and also the Governor should exercise his own Judgement in this regard.
• Where President’s Rule is imposed the Governor of the State should responsibly act under the direction of the Union Government.

Sarkaria Commission Report (1988)

1. On appointment:

• Governor should be an eminent person and not belong to the state where he is to be posted.
• State chief minister should have a say in the appointment of governor
• Governor should be a detached figure without intense political links or should not have taken part in politics in recent past.
• Governor should not be a member of the ruling party.

2. On Removal

• Governors must not be removed before completion of their five year tenure, except in rare and compelling circumstances

3. Governor should appoint CM based on following principles:

• Leader of the majority party or parties,
• Should seek the vote of confidence in the assembly within 30 days of his appointment as the CM.
• As long as the council of ministry possess a majority in the assembly the governor cannot use his discretionary powers.

Venkatachaliah Commission (2002)

On Appointment:

• Governor’s appointment should be entrusted to a committee comprising the prime minister, the home minister, the speaker of the Lok Sabha and the chief minister of the concerned state.

On 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)

• The phrase “during the pleasure of the President” should be deleted from the Constitution
• Governor should be removed only by a resolution of the state legislature.

Way forward

1. The recommendations of the Sarkaria Commission and the Punchhi Commission report need to be examined closely to make proper amendments to the functions of the post of governor.
2. The Supreme Court Judgement (BP Singhal versus Union of India (2010) case) which curtailed the power of the Centre to dismiss state governments arbitrarily is commendable. Further the removal of governor from office must entail impeachment proceedings in the state assembly.
3. Governor’s office should be apolitical. There should be a panel involving the opposition, ruling party, civil society and the judiciary in the selection process of Governor. Governor should be appointed only after consultation with the CM of the state where he/she will work
4. Discretionary powers should be curtailed. There should be proper guidelines on the appointment of CM
5. According to ex-PM Manmohan Singh, should facilitate in maintaining internal security, ensure communal harmony and welfare of SCs and STs and rise above partisan politics while discharging Constitutional obligations