The Role of The Governor in India

GS 2 Syllabus : Functions & responsibilities of the Union and the States; issues and challenges of federal structure

Why In News: 

The issue of Governor has been in the news for the past 2 years as the office of Governor is impacting the federal structure of Governance in India in general and particularly in Tamilnadu, Kerala, Telangana and others. In this Context we study various issues associated with the office of the Governor. 

The role of the governor in India is a constitutional position established by the Constitution of India. As the constitutional head of each state, the governor serves as the representative of the President of India at the state level. While primarily a ceremonial position, the governor holds a crucial position in the functioning of the state's governance and plays a significant role in the executive, legislative, and administrative spheres.

However, the role of the governor has not been without controversy. Critics argue that the discretionary powers of governors have sometimes been misused for political purposes, leading to constitutional crises and political instability. The need for greater accountability, transparency, and neutrality in the functioning of governors has been widely debated.

Position of Governor in the Constitution 

Article 153 provides a Governor for each State, and by virtue of Article 154, the executive power of the State shall be vested in the Governor (“Shall be exercised by him directly or through officers subordinate to him in accordance with this Constitution”). However, Article 154(2)(a) prohibits the Governor from exercising any function “conferred by existing law on any other Authority”. 

 Article 163 categorically provides that “there shall be a council of ministers with the Chief Minister at the head to aid and advise the Governor... except in so far as he is by or under this Constitution required to exercise his function or any of them in his discretion”.

 Harmony between Office of Governor and State Government 

In 1974, the Supreme Court ruled in Shamsher Singh vs State of Punjab and Anr. that the Governor exercises all powers and functions by making rules for the convenient transactions of the government's business in accordance with Article 166 of the Constitution. 

The Court emphasized that the satisfaction required by the Constitution is the satisfaction of the President or Governor in the Constitutional sense under the Cabinet system of the Government. The Court held that the discretion conferred on the Governor means that as the Constitutional or formal head of the State, the power is vested in him. The Governor is justified in exercising his discretion under Article 356 only, even against the advice of his council of ministers. In all other matters, the Governor acts in his discretion in harmony with his Council of Ministers. 

The Constitution does not aim at providing a parallel administration, and the basic philosophy is that in a democracy, elected Ministers must accept responsibility for every executive act, and the Council of Ministers represents a responsible form of government in the States. 

Constitutional Debates in the past 

In 1949, the Constituent Assembly debates highlighted the significance of the Governor's constitutional and legal authority. Fearing parallel state leadership, the debate centred on whether the Governor should be appointed by the President or elected. B.G. Kher argued that a good Governor can do good, whereas P.K. Sen questioned whether interfering with the Governor would strengthen or undermine democracy. 

K.M. Munshi proposed an independent from local party politics constitutional head. B.R. Ambedkar responded that the Governor's duties should be limited to those specifically outlined in the Act. Prof. K.T. Shah argued during a debate on Article 143 (now Article 163) that Cabinet decisions could be made, but the Chief Minister would advise on the appointment or removal of colleagues if necessary. 

Ambedkar clarified that the discretionary power granted to the Governor in this Article is limited and should be read in conjunction with other articles that reserve power specifically for the Governor. T.T. Krishnamachari, a member of the Committee that drafted the legislation, believed that if the Governor understood they could not act independently, they should only act on the advice of the Ministry. 

The reality today 

These debates give us sufficient indication of the role, the powers, and the duties of the Governor. Certainly, the Governor has no powers to interfere with the administration in day-to-day affairs including to refuse assent to Bills passed by the Assembly. But what is happening today, especially in Opposition-ruled States is a shocking disregard by Governors for the Constitution. One can only hope and trust that the situation will be remedied by the judiciary at the earliest. It is only then that the rot can be stemmed.

What led to the Governor-CM rift in Tamil Nadu? 

Governor’s speech 

The Tamil Nadu Assembly witnessed unprecedented scenes on January 9 when Governor R. N. Ravi, while delivering his customary address to the House, omitted certain paragraphs from the text prepared by the State government. Chief Minister M.K. Stalin later moved a motion to take on record only the transcript distributed to legislators, prompting the Governor to walk out of the House. 

Removal of State Minister by Governor without aid and advice of Council of Ministers 

Tamil Nadu Governor R.N. Ravi has dismissed State Minister V. Senthilbalaji, who is currently in hospital and judicial custody. Governor sent a communication to Chief Minister M.K. Stalin, stating he dismissed Senthilbalaji without Portfolio. He later sought the opinion of the Attorney General of Indiaand kept the order in abeyance. Governor's actions are invoking Articles 153, 163 and 164 of the Constitution, which deal with the executive power of the State being vested in the Governor, acting on Cabinet advice, and the appointment of the Chief Minister and other Ministers. The constitutional scheme does not grant the Governor discretion in appointing and removing ministers. 

Constitutional Provisions and clarity 

The power of Governors to dismiss an individual Minister without the Chief Minister's advice is a crucial aspect of the Constitution. Under Article 164, the Chief Minister is appointed by the Governor without any advice, and he appoints individual Ministers only on the Chief Minister's advice. This means that the Governor can only dismiss a Minister on the Chief Minister's advice. The Chief Minister alone has the discretion to choose his Ministers, and the Constitution has not transferred this discretion to the Governor. 

The Government of India Act, 1935, outlines the Governor's Ministers as chosen and summoned by him, holding office during his pleasure. The functions of the Governor under this section, including choosing, summoning, dismissing, and determining their salaries, are exercised in his discretion. This demonstrates that the Governor during colonial rule had absolute discretion to choose and dismiss Ministers, allowing for a hire and fire approach to the appointment and dismissal of Ministers. 

The pleasure doctrine has been brought into the Constitution of India from the Government of India Act, 1935, but these words refer to the formal act of issuing the order of dismissal, which is to be done by the Governor, but only on the advice of the Chief Minister. The pleasure of the Governor under the Constitution of India in relation to Ministers is not the same as that of the colonial Governor. The Governor's pleasure in this regard is not the same as that of the colonial Governor. The words "chosen", "dismissal", and "discretion" were omitted when Article 164 of the Constitution was drafted, indicating that the Constitution did not confer any discretion on the Governor to either choose or dismiss an individual Minister. 

Judicial clarification 

The Supreme Court of India has clarified the position of a Governor in India's Constitutional setup in several cases. In Shamsher Singh and Anr vs State Of Punjab (1974), a seven-judge Constitution Bench declared that the President and Governor, custodians of executive and other powers under various Articles, shall exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers, except in certain exceptional situations. 

 In Nabam Rebia vs Deputy Speaker, a five-judge Constitution Bench reaffirmed the law and limited the Governor's discretionary powers to Article 163(1) postulates. The Court also set aside decisions in Mahabir Prasad Sharma and Pratapsing Raojirao Rane cases, where the Governor could exercise power under Article 164 unfettered. The dismissal of a Tamil Nadu Government Minister without the Chief Minister's advice is constitutionally wrong, and the issue destabilizes the constitutional system. 

What are the recommendations of Bodies and Commissions concerning the Governor's Office? 

In 1969, the Administrative Reforms Commission: The Commission recommended that state governors be non-partisan individuals with extensive experience in public life and administration. 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 field and from outside the State; (iii) The person should be a detached figure without intense political ties or should not have participated 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 only be removed before the end of his 5-year term if doubts are raised about his morality, dignity, constitutional propriety, etc.; (ii) The State Government may be informed and consulted during the removal process;

(c) Use of Article 356: This article should be utilised with extreme caution and only as a last resort. It can only be invoked in cases of political crisis, internal subversion, physical breakdown, and noncompliance with the Centre's Constitutional directives. 

National Commission to Review the Working of the Constitution (NCRWC): The Governor should be appointed by a committee consisting of the Prime Minister, the Home Minister, the Speaker of the Lok Sabha, and the Chief Minister of the affected state. 

The Second Administrative Reforms Commission (ARC) recommends that the Inter-State Council develop guidelines for governors to follow when exercising discretionary authority. 

Punchhi Commission (2010): 

(a) It proposed giving Governors a fixed 5-year term and removing them via an impeachment procedure (similar to that of the President) by the State Legislature. The doctrine of pleasure (for removing Governors) should be eliminated; 

 (b) It reiterated the Sarkaria Commission's recommendation regarding the appointment of Governors. The individual should not be involved in politics; 

 (c) the convention of Governors serving as chancellors of universities should be abolished; and (d) Articles 355 and 356 should be amended to permit the Union Government to bring specific troubled areas under its control for a limited time, rather than the entire State. 

What should be the strategy moving forward? 

First, Multiple Commissions have provided extremely pragmatic recommendations regarding the operation of the Governor's Office. Particularly those related to the appointment and removal of Governors, these recommendations should be implemented expeditiously. 

Second, both the Punchhi and Sarkaria Commissions recommended that governors should not be burdened with positions and responsibilities that exceeded their constitutional authority. This was done with the intention of shielding the Governor's office from unnecessary public controversy. In addition, both the Punchhi and Sarkaria Commissions concurred that this would be in the State's best interest. By taking such action, it would be possible to avoid a conflict with the State Government. 

Thirdly, Governors must also act in the best interests of their respective states and the Union. The Governor should not represent the party in power at the federal level. The Governor should serve as a liaison between the state government and the federal government. 

Fourth, the Governor's discretion and constitutional mandate should be guided by certain 'norms and principles' that are defined in a 'Code of Conduct'. A decision involving discretion must be guided by reason, motivated by good faith, and tempered by circumspection. 

Fifth, certain codifications can be made regarding discretionary powers, such as 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 Cabinet's advice when dealing with bills, etc. 

Conclusion 

The current issues surrounding the Governor's Office are unnecessary and avoidable. These issues diminish the esteem of the highest constitutional office. In this regard, the Union and State Governments should adhere to both the spirit of the Constitution and the decisions of the Supreme Court. The implementation of the recommendations of various Commissions can ensure that such pointless disputes do not arise in the future. In addition to acting in accordance with their constitutional mandate, governors should avoid acting as political agents. A proactive and impartial Governor's Office can strengthen the Union-State relationship and the federal structure. 

BACKGROUND INFO 

Discretionary Powers of The Governor The discretionary powers of the governor in India can be broadly categorized into constitutional discretionary powers and situational discretionary powers. Here are some of these powers along with the relevant articles of the Indian Constitution: 

Constitutional Discretionary Powers: 

1. Appointment of Chief Minister: Article 164(1): The governor appoints the Chief Minister of a state. 

2. Dismissal of State Ministers: Article 164(1): The governor can dismiss a state minister on the advice of the Chief Minister or when the minister loses the confidence of the legislative assembly. 

3. Reservation of Bills for President's Assent: Article 200: The governor can reserve any bill passed by the state legislative assembly for the President's assent if it is in contravention of the Constitution or is of great public importance. 

4. Appointment of the Advocate General: Article 165: The governor appoints the Advocate General of the state, who is the chief legal advisor to the government. 

Situational Discretionary Powers: 

1. Dissolution of the Legislative Assembly: Article 174: The governor can dissolve the state legislative assembly if no party or coalition can provide a stable government or if there is a breakdown of constitutional machinery. 

2. Recommendation of President's Rule: Article 356: If the governor is convinced that the state government cannot be carried on in accordance with the Constitution, they can recommend the imposition of President's Rule to the President of India. 

3. Appointment of Chief Justice and Judges: Article 217: The governor, in consultation with the Chief Justice of the High Court and the Chief Justice of India, appoints the judges of the High Court. 

4. Pardoning Powers: Article 161: The governor has the power to grant pardons, reprieves, respites, or remissions of punishment to individuals convicted of offenses against state laws. I

t is important to note that these discretionary powers of the governor are exercised in accordance with the advice of the Council of Ministers, except in cases where the Constitution explicitly allows the governor to exercise independent judgment. The exercise of discretionary powers by the governor is also subject to judicial review by the courts to ensure that they are not used arbitrarily or in violation of the Constitution.

Mains Practice Question: Governors in Indian states: A colonial imprint. Comment