(Online Course) Pub Ad for IAS Mains: Chapter: 6 (State Government and Administration) - The Governor: Constitutional Position and Political Reality (Paper -2)

Article 153 of the Indian Constitution provides that “there shall be a Governor in each State.” However, the Constitution Seventh Amendment Act 1956 makes it possible to appoint the same person as Governor for two or more states. Regarding his appointment, Article 155 stipulates that the Governor of a state shall be appointed by the President of India by warrant under his had and seal. Article 156 says that the Governor shall hold office during the pleasure of the President. Subject to this provision, he shall hold office for a term of five years from the date on which he assumes his office. The Governor can resign by writing a letter of resignation addressed to the President. However, he continues to hold office till the new Governor assumes his office. Since he hold office during the pleasure of the President, no process of impeachment or any other method of removal is prescribed by the Constitution.

The Qualifications for this post are that the person should be a citizen of India and should have completed 35 years of age. He should not be a member of the Union or state legislatures and, if he is, his seat in the House falls vacant on the date on which he enters the office as Governor. He shall not hold any other office of profit. His emoluments, allowances and privileges may be determined by parliamentary laws. No criminal proceedings can be instituted against the Governor during his terms of office and no proceedings for his arrest or imprisonment can be taken by any court. Civil proceedings in respect of an act done by the Governor in his personal capacity can be instituted after the prescribed statutory notice.

Powers and Functions

The powers exercised by the Governor can be divided under two two broad headings: (1) those powers which he exercises with the aid and advice of the Chief Minister and his council of ministers and (2) those powers which he exercises in his, discretion.

Article 154 states that the executive powers of the state shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate,: to him in accordance with the Constitution. The word ‘subordinates’ includes all the ministers and the Chief Minster. Unless they are subordinate to him they cannot exercise the executive powers vested in him. His executive powers are co-extensive with the legislative powers of the state legislature. It covers all the subjects on which the state legislature can enact laws. A situation could arise when there is no rule or law of the legislature relating to a particular subject. In that case the Governor can exercise his executive powers by issuing administrative rules, orders, circulars or instructions so long as the legislature does not make any law on that subject.
The Governor is required to frame rules of business allocating work to different ministers. Through the rules of business and standing orders, the Governor may delegate any of his executive powers, except those actions which are to be exercised by him at his discretion, to his ministers.

He appoints the council of ministers for the state, the Advocate General and the members of the State Public Service Commission. As regards his legislative powers, vide the 23rd amendment to the Constitution in 1969, he appoints one member of the Anglo-Indian community to the legislative assembly wherever necessary. He also appoints a few members in the State Legislative Council, if there is one, in the state. These persons should have made their mark in the field of arts, science, literature, social sciences etc. These appointments are also made in consultation with the C.M. and his ministers. The validity of these nominations cannot be enquired into by any court.

The Governor is not bound to disclose any facts relating to such nominations. If the office of the Speaker or the Deputy Speaker in the Legislative Assembly or that of the Chairman or the Vice-Chairman in the Legislative Council falls vacant, he can appoint any other member from the Assembly or the Council as the case may be, to take charge.

However, the most important legislative power is that of issuing ordinances. They are issued by him after the advice of the President or the Chief Minister and his ministers. He can promulgate an ordinance under Article 213 (1), only when the state legislature is not in session in order to meet an emergency which requires immediate action. Under Article 213 (2) such an ordinance-will have the same force as a law. Every such ordinance will be laid before the state legislature and shall cease to operate at the expiry of six weeks from the reassembly of the legislature or if, before; the expiration of that period, can also be withdrawn by the Governor at any time. There are three circumstances under which the Governor cannot promulgate an ordinance without prior instructions from the President: (1) if a bill containing the same provisions world require the prior sanction of the President before its introduction; (2) if he world have deemed it necessary to reserve a bill containing the same provisions for the consideration of the President ; and (3) if an Act under the same provision would have been reserved for the consideration of the President and work. have received his assent.

The power of issuing ordinances is an extremely useful one as it facilities, immediate action in an emergency. But, it must always be exercised in good faith Seervai, quoting Wadhwa’s work dealing with ordinances in Bihar, points out that a state could be governed principally by ordinances without very little legislative enactment. He says that in Bihar, between 1971-1981, 163 Acts were passed by the legislature and 1956 ordinances were promulgated by the Governor. In other words, in eleven years, on an average, for every one Act of the legislature there were twelve ordinances of the Governor. In Bihar, some ordinances had a life of 13 to 14 years. This can happen because there is no bar in the Constitution on the number of times the Governor call promulgate the same ordinance.

The Governor is also the ex-officio chancellor in some of the universities and, as such, has statutory powers of the appointment of the vice-chancellor or of nominating members to the various bodies of the universities. The Governor, while doing so, generally acts on the advice of the Chief Minister, but there have been instances when Governors have ignored the advice of the Chief Ministers. He must also consult the Education Minister while appointing the vice-chancellor. Whenever the need arises for a new vice-chancellor, the chancellor appoints a committee consisting of a nominee of the university senate and the chancellor’s nominee. This committee prepares a panel of names from among which, the Governor chooses one.

His powers as chancellor are not defined by the Constitution but are -given by the enactments of the state legislature. Hence, they vary from state to state. In all cases, as head of the state, he must endeavour to maintain the autonomous character of universities and must keep them free from political interference.

The Governor of a state has also the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the state extends. He can also grant amnesty. There is a difference between the pardon granted by the President under Article 72 and by the Governor under Article 161. The President has an exclusive power to grant pardon in cases where the sentence is a sentence of death. Secondly, the President can pardon punishments or sentences inflicted by court material. The Governor has no such powers.

Discretionary Powers of the Governor

It would be interesting to note at the outset that whereas Article 74 does not bestow on the President any discretionary powers, Article 163 makes the Governor sole judge in matters in which he is required to act in his discretion.

Article 163 (1) explicitly gives him discretionary powers when it says:

There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final and the validity of anything done by the Govern,, shall not be called in question on the ground that lie ought or ought not to have acted in his discretion.

The question whether any, and, if so, what advice was tendered by ministers to the Governor shall not be inquired into in any court.
1. Article 166(3) which states that the Governor can make rules of business except in cases where he can act in his discretion,
2. Article 200 which says that the Governor can reserve a bill for the consideration of the President.,
3. Article 356(1) which provides that the Governor can make a report about the failure of the constitutional machinery in the state.
4. Article 239(2) which gives him certain functions when appointed to be Administrator of a union territory,
5. Article 239(2) which bestows on him the power to make rules, and
6. The Sixth Schedule, which gives the Governor of Assam two discretionary powers; the first deals with the disputes between the Government of Assam and an autonomous Tribal District Council with respect to the sharing of royalties that accrue from the lease of mining rights within the Governor may apply certain special administrative provisions in the Constitution with respect to tribal areas in Assam vi.s-a-vis particular tribal areas.

Besides, the Governor has certain special responsibilities to discharge according to the directives issued by the President under Articles 371(2), 371A(l) (b), 371 (C) etc. He does not have to consult the C.M. or his council of ministers in this context. Although the words ‘in his discretion’ is mentioned in the Constitution, the provisions relating to the exercise of these powers are couched in general and vague terms. K.V. Rao, a noted political scientist, lays the blame for this vagueness on the defective composition of the Constituent Assembly and lack of time at the disposal of the Assembly. He says: “The whole set of articles numbering about 20 concerning the state governments were passed in a hurry in one day that the whole Constitution and its structure was envisaged in such a way as if the Congress and its then high command would be in power for a long time. The authority of the Governor even in the discretionary field is not unrestrained. If it is misused, either as a result of personal ambitions or as partisan in the currents and cross-currents of state politics, the President can always check him; if necessary, he may even remove him. “Discretion has to be exercised so as not to jeopardise the working of parliamentary democracy”. It would be profitable to look at a few possible cases wherein the Governor may have to exercise his discretion

Appointment of a Chief Minister

When there is a party in the state legislature with a clear-cut majority, the Governor has no discretion because he has only to invite the leader of that party to become the Chief Minister. This did not pose any problems till 1967 because the Congress enjoyed a comfortable majority both at the Centre and in the states. The post 1967 period posed a dilemma as the Congress, after the general elections of 1967, was reduced to a minority in eight states. Several questions of importance arose. In case there was no party with an absolute majority in the state legislature, should he invite the leader of the single largest party? This could be the Congress again in some states and asking it to form the government would be wrong. “The voters may or may not have voted in government would be wrong. “The voters may or may not have voted in favour of the opposition; on thing is clear that they certainly voted against the Congress. Or, should he ask the leader of the single largest opposition party or a group of parties merged into a coalition to form the government. K. Subba Rao opines that the leader of the opposition should be invited unless his chances of forming the government are bleak. The term ‘stability’ is taken to mean not only the numerical superiority of the ruling party but also its ability to hold on to the majority strength and continuing with it. In both cases, the problem becomes embarrassing and complicated due to the presence of independents in the legislature and defections from one party to the other. No independents in the legislature and defections from one party to the other. No easy solutions are available and “whichever minority party or group of parties was called upon to form a government, stood the chance of converting itself into a majority by securing the support of defectors from other parties by promising ministerial office to the leaders of the defectors”.

How, then, is the Governor to make his choice? For this purpose, the Governors have generally employed three methods: List system, parade system or physical verification and list-cum-parade system. Under the first method, he can ask the contenders to provide a list of their supporters and to enquire from each member on the list about his choice. If the balance is held by the independents he must enquire from each independent, his verdict. The parade system is the physical verification of the list in the Assembly. He must summon the session of the Assembly and ask the contenders to show their strength without the least possible delay. The result is not very satisfactory and does not give effect to the verdict of the electorate. In case he uses both the methods, it is known as the list-cum-parade method.

Dismissal of the Chief Minister and the Council of Ministers

This issue raises a number of knotty questions and has been used by the Centre to assert its hegemony at the state level. In theory, the Chief Minister and his ministers, according to Article 164(1), hold office during the pleasure of the Governor. Yet, they are not totally at the mercy of the Governor because Clause (1) of Article 164 must be read together with Clause (2) of the same article. It says that the council of ministers is collectively responsible to the state legislature. It also includes the Chief Minister ostensibly because he is the head of this council. This means that so long as the ministry enjoys the-confidence of the legislature, it can hold effice. However, the phrase is not as simple as it sounds and may lead to several complicated problems.

What happens when a Chief Minister and his partymen are reduced to a minority in the legislature through defections? The Governor, in this case call ask the C.M. to prove his strength on the floor of the Assembly. The Committee of Governors, appointed by the President in 1970, had recommended that a C.M’s refusal to test his strength on the floor of the Assembly can well be interpreted prima facie as proof of his no longer enjoying the confidence of the legislature. It may also happen that a reluctant C.M. may try to change the date of the Assembly meeting. When the C.M. dilly-dallying, tries to bypass the meeting, the Governor has no alternative but to dismiss him and his ministry. He can also make a report to the President under Article 356 regarding the failure of constitutional machinery in his state. In case the strength is tested during an Assembly meeting and the C.M. fails to muster a majority, he can easily by dismissed by the Governor. What is to be emphasized here is that dismissal should by the Governor. What is to be emphasized here is that dismissal should take place only after a clear-cut verdict by the Assembly.

In other words, Article 164 (1) should come into force when Article 164(2) has been fully observed. A situation may arise when a defeated ministry refuses to resign even after a vote of no-confidence has been passed against it. In such circumstances, the Governor is entitled to dismiss the ministry and install a new ministry in the state. Defeat of the government on important policy matters, for instance the budget, also tantamount to a vote of no-confidence against the government and creates grounds for intervention by the Governor and, in all probability, would lead to the dismissal of the government.

But, what would happen in case a Chief Minister, who is accused of corruption, misadministration or any other unpatriotic deed, enjoys the confidence of the House? Pylee says that e Chief Minister or a minister can be removed if lie undermines the unity of the nation and establishes an independent state or enters into secret negotiations with a foreign power with a view dismiss such a ministry, even if it enjoys a majority in the legislature. In cases of corruption too the Governor can order the prosecution of the Chief Minister which may subsequently lead to in,; dismissal The case of M.A.R. Antulay can be cited here. Antulay took over as the C. M. of Maharashtra in 1980. In August opposition has charged Mr. Actually with abuse of power in allotting cement, an essential distribution, to certain big builders as quid pro quo for donations made to the trusts which he had created. P.B. Samant and others filed a petition in the High Court and Justice Lentin found Antulay guilty of corruption.

Antulay resigned and appealed against the decision, but of no avail. “The Governor of Maharashtra, acting on his own discretion, gave his sanction to the applicants to prosecute Actually under the Prevention of Corruption Act, after giving a full hearing to Antulay.

The power to dismiss the C.M. of a state is in reality not a discretionary one and may have serious repercussions on the Governor’s career itself, as was proved in April 1994 in the case of Goa. On 2 April, 1994, Governor Bhanu Pratap Singh dismissed the C.M. of the state, D’Souza’s closest rival Ravi Naik without taking the approval of the Centre. Retribution followed soon and the Governor himself was unceremoniously dismissed on 3rd April, 1994.

Dismissal of a Minister or the Council of Ministers

When the Governor appoints the Chief Minister under Article 164(1), he is not acting on anyone’s advice. But, while appointing the council of ministers under the, same clause, he acts on the advice of the Chief Minister. This would imply that he is not as free while removing a minister or the council as a whole as he is where removing the Chief Minister. The advice of the Chief Minister is obligatory on the pail of the Governor with regard to the dismissal of other ministers. “In the absence a such authority in the hands of the Chief Minister, parliamentary democracy is nothing but a farce.” The Governor can dismiss parliamentary democracy is nothing but a farce.” The Governor can dismiss a minister on the advice of the Chief Minister. However, he cannot dismiss the ministry in a collective form, for the words “during the pleasure of the Governor” in reality mean the pleasure of the legislative assembly. The right to out them collectively belongs to the assembly and not to the Governor. Lastly, in all cases of dismissal of either the C.M., a minister or the entire ministry, the decision of the Governor is final and cannot be challenged in any court of law.

Prorogation of the Legislature

The Governor exercises this power by virtue of the fact that he is an integral part of the legislative process. A word may he said here about the difference between adjournment, prorogation and dissolution of the legislature. An adjournment is an interruption in the normal business of the House in the course of one and the same session and this power is exercised exclusively by the Speaker. Prorogation means end of a session of the Assembly; dissolution means the end of the Assembly and signal for fresh elections.
It is the convention that, while prorogating the House, the Governor must consult the Chief Minister and the Council. Yet, this principle cannot be accepted in toto. He has discretion in this regard and it must be judiciously exercised. When the Chief Minister advises the Governor to prorogue the Assembly in the middle of the session to save the ministry from defeat in the Assembly or there is a no-confidence motion against the Chief Minister or his council, the Governor, in his discretion can refuse to do so. The C.M. may have lost his majority due to defection or splits in the party and yet he wants to stay on in power and indulge in horsetrading to regain what he has lost, viz., majority support. In such a case, the Governor must carefully scrutinize the situation and proceed to prorogue it only when he is satisfied that the motion is not frivolous but genuine.

Summoning the House

The Governor is empowered to summon the chambers of the state legislature simultaneously or separately but more than six months should not elapse between: two sessions. Under Article 175(1), he can also summon a joint session and address. both the Houses together. This does not hold good when the state is under President’s rule under Article 356 and the state assembly is dissolved or in a state of suspended animation. Constitutional experts are sharply divided on the question whether this is discretionary power or not. Normally and conventionally, it ought to be treated as a duty rather than a power. He will consult the Chief Minister and his ministers because the latter provide business for a session of the legislature. But, what happens when a Chief Minister, fearing defeat in the Assembly, does not advise the Governor to summon the session. By not summoning the legislature, would not the Governor be violating the Constitution? Can he be removed by the President for not summoning the legislature? What would happen if the same party is ruling at the Centre and in the state and the President, advised by the council of ministers (who also belong to the same ruling party), advises the Governor not to summon the session? What is the proper course of action? These questions have no answers, since the Governors have behaved differently at different times in the same context. Conflicting views of jurists make the situation still more confusing. B.R. Ambedkar was of the view that, since it was more a duty than a power, by not summoning it he would be violating the Constitution. The Governor’s Conference, held at New Delhi in 1970, was of the opinion that since the Assembly was the proper forum for assessing the claims of the contenders. the Governor could summon it even if the Chief Minister advised against it. Experts such as C.K. Daphtary, M.C. Chagla and L.M. Singhvi also hold that it is his discretionary power.

Dissolution of the Assembly

If the ministry enjoys a majority and yet demands dissolution, there is no alternative but to order dissolution. Similarly, the Governor can order dissolution, under Article 356, if the ministry resigns without passing the budget. But if the suggestion of dissolution comes from a ministry that has lost its majority and is afraid of the opposition taking over, the Governor can refuse. In this case, it is his duty to summon the Assembly and try to find an alternative in the House. In his discretion, he can refuse to accept the advice of dissolution. However, he should avoid entering into controversy or becoming himself party to the politics of defectors. This august office should not be misused by the Centre to engineer defections.

Reservation of Bills for Reconsideration by the President

In the process of legislation, the Governor does not have a total veto power but can only stall legislation. Under Article 200, the Governor can reserve a bill passed by the legislature for reconsideration of the President. A bill can be reserved under the following circumstances: (i) if the bill is unconstitutional, (ii) if it is against the larger interest of the country, (iii) if it is in direct opposition to the Directive Principles of State Policy, (iv) if the bill passed-by the state legislature is of grave national importance, (v) if it endangers the position of the High Court and (vi) if the bill, deals with the compulsory acquisition of property under Article 31(3). It is interesting to note that, Article 200 does not contemplate that the Governor shall first give his assent and, when the bill has become a full-fledged law, reserve it for the consideration of the President. Reservation is an alternative to his giving or refusing assent to the Bill. Indeed, in matters where reservation is compulsory, the Governor is prohibited from giving his assent.

But, it is certainly a discretionary power because the Chief Minister or the council of ministers would certainly not advise the Governor to reserve a bill for: President after it has been passed by a majority in the legislature. However, the Constitution does not specify the time-limit within which the Governor can reserve the bill and when the bill would come back.

Under Article 201, when the Governor sends a bill to the President for reconsideration, the President has to declare whether he is giving or withholding his assent. In cases of non-money bills, the President, if he is not giving his assent, can ask the Governor to send the bill back to the House or Houses as the case may be. The House or Houses will reconsider this bill, sent by the President, within a period of six months from the date of receipt of such message and, if it is again passed by the House or Houses, with or without amendment, it shall be presented again to the President for his consideration.

Governor’s Assent to Bills and Returning of Bills to the House

Article 200 says that when a bill has been passed by the state legislature, it shall be presented to the Governor and the Governor declares whether he assents, is withholding assent or reserving it for reconsideration by the President. In case of money bills, he cannot withhold his assent because, under Article 207, money bills can be introduced in the state legislature only after the approval of the Governor. Hence, he cannot withhold assent to a bill he has approved of in the first instance. He cannot send a money bill back for reconsideration by the House.

In case of a non-money bill, he can send the bill back to the Assembly together with his recommendations in his message to the House or Houses. The House or Houses will reconsider this bill and, if it is passed again with or without the amendments desired by the Governor, the Governor cannot withhold his assent and has to sign the bill. It may be mentioned here that returning the bill to the legislature does not mean without assent. J.R.Siwach, in his study, gives examples to prove his point and says that when assent is withheld, the bill is not sent back for reconsideration. Article 200 does not specify any time-limit within which the bill has to be sent to the legislature by the Governor for reconsideration. It merely uses the words “as soon as possible”.

Time and again, Governors have withheld their assent to particular bill because this power is given by Article 200. But, generally, the power has not been used much because probably that was the intention of the Constitution-makers. They certainly did not want the Governor to act as the super limb of the legislarure. Frequent misuse of this power may lead to the resignation of the ministry. Besides, healthy parliamentary norms have taken shape in such a manner that he does not use an absolute veto but can by pass an embarrassing position by reserving the controversial bill for the Presidents’ consideration.

Governor’s Address

According to Article 175(1), the Governor can address either House off state legislature separately or both the Houses assembled together. He also delivers the special address at the commencement of the first session after each General Election to the Legislative Assembly at the commencement of the first session of the year and an inaugural address at the budget session. The address, whenever delivered, is prepared by the Chief Minister and his council of ministers. The address must not make any reference to the High Court and should be in accordance with the oath the Governor takes under Article 159. In all cases, it is a written speech and he merely intones the words of the ministry.

The important question in this regard is whether he can delete an objectionable part from this address. Prominent jurists such as Ashoka Sen and M.C. Setalvad have held the view that he can avoid reading certain lines or paragraphs when these lines or paragraphs condemn the Governor for his earlier actions, as, otherwise, it would be as if the Governor were delivering a verdict against himself. He can also omit any part if it is not within the limits of constitutional property.

Seeking Information

The right of the Governor to seek information from the Chief Minister is again a discretionary one because it would be ridiculous to say that the Governor should consult the Chief Minister before seeking information from him. Under Article 167(a), it is the duty of the Chief Minister to keep the Governor informed about the decision of the council relating to the administration of the affairs of the state and proposals for legislation. Under Article 167(c), the Governor is empowered to ask the Chief Minister to submit for the consideration of the council of ministers any matter on which a decision has been taken by a minister but which has not been considered by the council. This power is related to the power of asking for information. “For, while going through the decisions of the government both by the Cabinet and individual ministers, the Governor may come across a particular decision made by a minister which, in his opinion, requires reconsideration by the Cabinet as a whole.”

The Governor and the President’s Rule

Under Article 356, the President can declare emergency in a state on receipt of a report from the Governor of the state or otherwise if he is satisfied that a situation has arisen in which the government of the state cannot be carried out in accordance with the provisions of the Constitution. An important aspect of this article is that emergency can be imposed on a state even without the Governor’s report. H.S. Kathuria, in his book President’s Rule in India, has given an excellent analysis of the factors that could lead to such an emergency. In brief, they are: (a) breakdown o’’ law and order machinery, (b) political instability as a result of defections, (c) paralysis of the parliamentary process, as, for instance, when the Chief Minister does not resign, even after losing the majority, (d) corruption, maladministration, separatist activity and terrorism, (e) popular agitation against the ministry, (f) loss of public confidence the majority, (g) a party with an absolute majority refusing to form the government and preventing the installation of a minority government, (h) no coalition government is set up, and (i) voluntary courting of it by a state to override a peculiar or particular problem.

Such an emergency can have the following effects: (a) the President can assume to himself all or any of the functions of the government of the state other than the High Court, (b) declare that the powers of the legislature of the state shall he exercisable by or under the authority of the Parliament, and (c) make provisions necessary or desirable for giving effect to the objects of the proclamation.

Every such proclamation must be laid before each House of the Parliament and will cease to exist at the expiration of two months unless it has been approved by both chambers of the Parliament before this term expires. If during these two months, the Lok Sabha is dissolved and the Rajya Sabha has approved it, then, the proclamation shall cease to operate on expiration of thirty days from the date on which the Lok Sabha first sits after its reconstitution, unless it is approved by the Lok Sabha before the expiration of this term. A proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of issue of the proclamation. Unless revoked, its life can be extended by six months each, several times, but in no case beyond three years.

Article 356 is a corollary to Article 355. The latter imposes a duty on the Union to secure that the government of every state is carried on according to the provisions of the Constitution. The former gives the Union the power to ensure that Article 355 becomes effective and, in case of difficulty, to overcome it by imposing Article 356.

The Governor, while sending his report, has to use his own discretion and judgment. “By the very nature of the power, it cannot be exercised on the advice of the Ministry for, it may very often happen that the report may itself be a condemnation of the Chief Minister to the effect that the government run by the Chief Minister is not being conducted in accordance with the Constitution”. At the same time, he’ must act bona fide and must have materials to sustain his judgment that the government of the state can really not be carried out.

The Politicisation of Position: Recent Cases

In case we examine the hundred and more cases of the imposition of the President’s rule in states, a large number would appear to be controversal. In fact, deiscretion not backed by objectivity and rationality is bound to create controversies.

More recently, B.P.Singh, the Governor of Goa, had gone to the extent of. replacing the Chief Minister with another MLA by interpreting the ‘pleasure’ clause. This was an obvious misuse of the clause. The Central Government continues to :‘out the Sarkaria Commission’s advice that active politicians should not be appointed as Governors. The results are unsavoury. Governor Gulsher Ahmed of Himachal Pradesh quit from the office after a row over his involvement in the intentions clear that he wanted to return to active politics. And, more recently, the U.P. Governor, Moti Lal Vora has been accused of acting at the behest of his ‘erstwhile’ party’s top leadership.

In October, 1995, when the BJP withdrew support from the minority BSP government in U.P., the Governor kept the State Assembly in suspended animation on the plea that the Supreme Court had ordered in the S.R. Bommai Case (when Rap-,/ Gandhi dismissed the Bommai Government in Karnataka) that a Governor should not dissolve the Assembly in without a proclamation to its effect being discussed and debated in the Parliament. But he did exactly the opposite of his utterances after 12 days when he recommended the dissolution of the Assembly. This he did without providing any chance to any claimant to form the government nor was the matter discussed in the Parliament. This ‘inconsistency’ in the Governor’s behaviour was criticised by constitutional experts such as P.P.Rao and Shanti Bhushan.

Is Governor an Agent Of The Centre?

There are a few articles in the Constitution which make the Governor an important link in the chain of relationship between the Union and the states. Article 160 says that the President may confer on a Governor functions in any contingency not provided in the Constitution. Under Article 200, the Governor can reserve a bill for the reconsideration of the President. Under Article 356, emergency is proclaimed by the President on the basis of the Governor’s report or otherwise. Article 167 puts an obligation on the Chief Minister to keep the Governor informed about the state affairs and the latter informs the President. Article 257 provides that the executive power of the state shall be so exercised as not to prejudice the exercise of the executive power of the Union, meaning that the Governor should follow the advice and instructions of the President.

Keeping these articles in mind, what exactly is the role of the Governor vis-a­ vis the Centre? Has he merely to function as the ‘good boy’ of the Centre or can he exercise his own judgment and discretion? The seeds of the Problem are inherent in his method of appointment. He is nominated by the President. K.V.Rao says that it is this thing which is most obnoxious. He says, “Today at the root of all troubles is the simple fact that the Head of the State is neither chosen by the State nor is he responsible to it, not removable “ By the very method of appointment and removal, the Governor becomes subordinate to the President and events prove that he cannot disobey him. Rao distinguishes between his role as a ‘link’ and that of an ‘agent’. His role as a link is more positive than an agent. He “cannot be both these things at the same time. He should be a reflection of the state government.... but not its antithesis nor a spy of the Centre.”

Leaving aside the discussion as to what an ideal situation should be, the post­1967 period shows that the Governor is today more an agent of the Centre thar n” the state. S.C. Dash has an interesting comment to make in this regard. He says, “ A split personality is at times an encumbrance and a Governor is expected to display such a personality. He can play the role of a Dr. Jekyll with the Union Government and Mr. Hyde with the State Council of Ministers and it would be difficult for either party to bring him to book”.

Recommendations of the Governor’s Committee on appointment of Governor on 30th November 1970, President V. V. Giri appointed a committee, five Governors to study and report on the appointment of the Council of Ministers by the Governor, for summoning, prorogation and dissolution of State Legislature and failure of constitutional machinery in a State. The Committee submitted its report on 26th November 1971.

The Committee expressed the view that the guideline could be provided and in each situation, the Governor concerned would have to take his own decision. The Committee was of the view that the Governor was not the agent of the President. As the Head of the State, the Governor has his functions as laid down in the Constitution itself and is in no sense an agent of the President.

Regarding the discretionary powers of the Governor, the Committee felt that under normal conditions the exercise of the Governors powers should be on the advice of the Council of Ministers, and on occasions when the council of ministers loses the confidence of the house, the governor can act independently.

The committee also felt that the leader of the largest single party could not claim that he had an absolute right to form the Government.

Recommendations of the Sarkaria Committee

During the Nehru era, the institution of governor was free of any controversies. But it came into prominence after 1967, and have adopted different stands and practices in .various states to suit the interest of the ruling party at the centre. The Commission observed that there was a widespread feeling that in some cases
Governors were appointed on considerations extraneous to merit. The dignity of the office suffered when persons defeated in elections were appointed.

Recommendations on appointment of Governor

1. Governor should be eminent in some walk of life.

2. Should be a person outside from the state

3. Should be a detached figure and not too intimately connected with the local politics of the state.

4. Should be a person who has not taken too great a part in politics generally and particularly in the recent past.

Mode of Selection

The Commission felt that the State Government should be given prominence in appointing the Governor.

The appointment should be made

1. From a panel to be prepared by the State Legislature; or

2. From a panel to be prepared by the State Government or invariably with the Chief Minister; or

3. Invariably in consultation with the State Chief Minister.

The Commission felt that the Chief Minister should be consulted bell. appointing the Governor. For proper working of the Parliamentary system there has to be a personal rapport between the Governor and the Chief Minister.

Thus the main purpose of consulting the Chief Minister is to ascertain his objections, if any, to the proposed appointment.

The Commission found that consultation with the Chief Minister has not invariably been taking place in recent years. The general practice, as far as the Commission has been able to ascertain, seems to be that the Union Government merely informs the Chief Minister that a certain person is being appointed as the Governor of the State. Sometimes even such prior intimation is not given.

The Commission recommended that the Vice President of India and the Speaker of the Lok Sabha should be consulted by the Prime Minister in selections a Governor. Such consultation, the commission felt, will greatly enhance the credibility of the selection process.

Activist Governors

At the recent conference of Governors, both the President and the Prime Minister of India supported the call for “activist governors”. It led to a serious discussion among the political thinkers about the role of Governor.

Can Governors be trusted to remain within the activism of the Constitution? The Constituent Assembly had toyed with the idea of activating Governors by making the post a responsible activist institution. But the idea of elected Governors was abandoned so that directly ‘elected’ Governors would not vie from prominence against indirectly selected Chief Ministers or Prime Ministers responsible to the Lok Sabha or Vidhan Sabha.

But except during the Nehru era, the governor’s office has become a political office. During Indira Gandhi era many Governors ran amok-holding a Congress brief for the party in power in New Delhi rather than objectively discharging their constitutional powers and responsibilities.

The Bhagwan Sahya Cominittee(1971) sustained this charge; and, the Sarkaria Committee(1988) openly stated that “the role of the Governor has emerged as one of the key issues in Union-State relations”. Unfortunately none of the recommendations of the Sarkaria report on Governor has been followed. On important recommendation was that the people from the party in power should not appointed to the office of Governor. The Constitution Review Commission also recommended the same. But it was not put into practice by any of the Central Governments that ruled the count over the past fifty years.

What is needed is more neutral, less political and in that context less :.activist Governors. This constitutional post requires greater scrutiny and oversight over it. Since the Governor is appointed by the President on the advice of the Prime Minister, such posts should be within the scrutiny of Parliament. Appointments should be mane after due consultation of a parliamentary committee should exercise oversight over the post.

Conclusion

Several questions and problems arise regarding the role of the Governor in state politics. They will continue to haunt us. It would be wrong to blame the Constitutions­makers i-n this regard as they could not have visualized all the problems that would arise. Each article relating to him may give rise to new controversies but, to understand his position, we must look at the Constitution as an organic whole. This, and several conventions, which have emerged, make the smooth running of the government possible. The Governor certainly does not have much to do, but that is because the Constitution-makers intended it that way. He is not supposed to run a parallel government in the state. His role is that of a sagacious counselor, mediator -and arbitrator- rather than an active politician. He has to abide by the advice of the council of ministers but that does not means immediate acceptance. He can reserve bills for reconsideration and prevent hasty decisions.

Great caution and restraint must be exercised while reporting to the President under Article 356. Otherwise, his image as the guardian of the state would get tarnished. He should keep himself away from active politics. An active politician, who has identified keep himself away from active politics. An active politician, who was identified himself with a political party, cannot inspire the total trust of the people. The recommendations of the Sarkaria Commission in this respect deserve serious consideration. Lastly, critics. of the institution should realise that, in a parliamentary democracy, it is a necessity. Slowly, it is emerging from slumber and some Governors have taken up cudgels on behalf of the states at the risk of losing their jobs. Hence, “it would be a gross fallacy to regard the institution of the Governor as a faint presence like a full moon at midday.

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