(Sample Material) Gist of IIPA Journal: Constitutional Head of State without Constitutional Security - The Governor and his Removal Priti Saxena

(Sample Material) Gist of Important Articles from IIPA Journal

Topic: Constitutional Head of State without Constitutional Security - The Governor and his Removal Priti Saxena

Governor after 1967

When India became free the urgent need was to achieve unity in its inherent diversity. The founding fathers, therefore, responded for a Centre oriented federal structure of the Government in the country, because of the compulsions of history and tradition. Whatever be its orientation, the fact in that we have federal system of government of two levels, and some kind of conflict between two is an inevitable factor. The first 20 years of working of the federal two is an inevitable factor. The first 20 years of working of the federal system did not throw up many problems because of the commenting supremacy of Congress Party, both at the Centre and states. Consequently, the Governor was to be the only functionary who could play a definite role in the best management of federal process, being the keystone in the arch of federal structure.

The manner of appointment of Governor was debated in the Constituent Assembly. Despite suggestions for the direct or indirect election of the Governor, what ultimately emerged was method of appointment by the President under Article 155. It was also suggested that if the Governor was to function as a Constitutional head and be a sagacious counselor and adviser to the Ministry, the Governor should be chosen with the consent of the state Government. Jawahalr Lal Nehru endorsed these views when he stated that, “he must be acceptable to the Province, and must not be known to go as a part of the Party machine of the Province”. It was accepted that the Governor was to be appointed on the advice of he Prime Minister who, would consult the chief minister concerned, the Governor was expected to be a non-party man, above politics, holding the scales impartially between the various factions in the states.

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However, in actual practice, the chief ministers were not consulted at all. On the other hand it was pointed out by Setelvad Study Team appointed by Administrative Reforms Committee that there was various cases where the Governors continued their connection with active politics and even returning to active politics after their terms as Governors. What the Governors office really requires, is not political detachment but integrity, independence and sobriety rooted in constitutional values. Above all the constitutional office of Governor must transform itself into something that cannot be converted into an agency of the Centre, to be sued, where deemed politically necessary, against opposition state governments. The best way of finding the right men and women for the job is to go beyond mechanical formulate and evolve a serious consultative mechanism for the selection. In a federal political system, it is necessary to establish a method by which the CM is always consulted before the Governor of the states in chosen.

Because, governor is a link between the Union and the state then why the Central Government should be allowed to unilaterally replace the Governor. This method will be good for active cooperation between Centre and states in matter of appointment and removal of Governor. Only a consensus candidate can be appointed and removed from the office a Governor and the cut short in the tenure of Governor for political reasons can be stopped. This will also check the generational posts which have steadily become a means for extending political patronage.

Recommendations of Various Committees and Commissions

Raja Mannar Committee recommended that “The Governor should be appointed always in consultation with the State cabinet. The other alternative will be make the appointment in consultation with a high power body specially constituted for the purpose." The Governor should be rendered ineligible for a second term of office as Governor or any other office under government. He should not be liable to removal except for proved misbehavior or incapacity after inquiry by the Supreme Court.

The Report of Governors’ Committee (1971) appointed by the President observed that “under the Constitution, just as the State is a unit of the Federation and exercises its executive powers and functions through a council of ministers responsible to the legislature, and none else, the Governor, as head of the state, has his functions laid down in the Constitution itself, and is in no sense an agent of the President”.

Administrative Reforms Commission (1967) was set up to review Centre-State relations in 1960. The specific recommendations were that “a person to be appointed as Governor should be one who has had a long experience in public life and administration and can be trusted to rise above party prejudices and predictions. The convention of consulting the Chief Minister before appointment a Governor is a healthy one and may continue." The Commission also recommended that a person should not be appointed as Governor for more than one term. Such a restriction is necessary in order to safeguard his independence and impartiality against being jeopardized by expectations of patronage. The study team appointed by ARC, headed by M.C. Setelvad, recommended that “no person who is appointed as Governor should take part in politics after his appointment as such, not even after retirement”.

Sarkaria Commission—In order to examine and review the working of the existing arrangements between the Union and states in regard to powers, functions and responsibility in all spheres and recommended such changes or other measures as may be appropriate, a Commission on Centre-State relations under the Chairmanship of R.S. Sarkaria, a retired judge of Supreme Court of India was set up in March 1983. The Commission submitted its report in 1988. The main recommendations relating to the office of Governor were—

1. A person should be appointed as a Governor should satisfy the following criteria-

(i) He should be eminent in some walk of life;
(ii) He should be not active in local politics of the States; and
(iii) He should be a person who has not taken too great past in Politics in recent years.

In selecting a Governor in accordance with the above criteria, persons belonging to the minority groups should continue to be given a chance as hitherto;

2. It is desirable that politician from the ruling party at the Centre is not appointed as Governor of a State which is being run by some other party of a combination of other parties.

3. In order to ensure effective consultation with the state chief minister in the selection of a person to be appointed as Governor, the procedure of consultation should be prescribed in the Constitution itself by suitably amending Article 155.

4. The Vice-President of India and the Speaker of the Lok Sabha ma be consulted by the Prime Minister in selecting a Governor. The constitution should be confidential an informal and should not be a matter of constitutional obligation.

5. The Governor’s tenure of office of five years in a state should not be disturbed except very rarely and that too, for some extremely compelling reasons.

6. save where the President is satisfied that, in the interest of the security of the state, it is not expedients to do so, the Governor whose tenure is proposed to be terminated before the expiry of the normal terms of five years, should be informally apprised of the grounds of the proposed action and afforded a reasonable opportunity for showing cause against. It is desirable that the President (in effect, the Union Council of Ministers) should get explanation, if any, submitted by the Governor against his proposed removal from office, examined by an Advisory Groups consisting of the Vice-President of India and the Speaker of the Lok Sabha or a retired Chief Justice of India. After receiving the recommendation of this group, the President may pass such orders in the case as he may deem fit.

7. When before expiry of the normal terms of five year a Governor resigns or in appointed Governor a another state, or has his tenure terminated, the Union Government may lay a statement before both House of Parliament explaining the circumstance leading to the ending of the tenure. When a Governor has been given an opportunity to how cause against the premature termination of his tenure, the statement may also include the explanation given by him, in reply.

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