One of the moot points that has had impact on the functioning of the Indian federation or the union-state relation has been the role played by the Governors in the opposition-ruled states in the post 1967 period; the opposition ruled states have been complaining the partisan role of the Governors. The post of Governor is no longer considered ‘sinecure’ by its occupants in the opposition ruled states.[1] The office of the Governor, as our constitution ordained, is regarded as the link between the Central Government and the State Government. However, the unfolding political developments over the years have shown Governors to be acting more as representative of the ruling party at the Centre rather than of the Central the Government. Sarkaria Commission too in its report took cognizance of this facet pointing out that some governors did not ‘display the qualities of impartiality and sagacity expected of them’[2].Many governors, coveting further office under the union or active role in the parties after their tenure, came to regard themselves as ‘agents of the union’[3].
Examples of blatant partisan acts of the Governors are in abundance; appropriate is to cite the recent examples. The Dravida Munnetra Kazhagam (DMK) government in Tamil Nadu describes the incumbent Governor R R Ravi as a “political rival” and creating a constitutional deadlock by sitting on bills for months.[4] The Left Front government in Kerala says governor Arif Mohammed Khan is accused of defeating “the rights of the people”.[5] The Aam Aadmi Party (AAP) government in Punjab and the Bharat Rashtra Samithi (BRS) regime in Telangana have echoed similar views against governors Tamilisai Soundararajan and Banwarilal Purohit, respectively[6].
Issues of Friction
The issues causing irritation in relation between the Governor and the Chief Minister are as follows
- Process of Appointment of Governors
- Issue pertaining to the use of Discretionary Powers with regard to appointment, dismissal and dissolution of the Assembly
- Dubious role of the Governor in recommending President rule in the states under Article 356
- Reservation of Bills passed by the State Legislature for Presidential assent
- Role of Governor as Chancellor of the Universities
- Tussle on account of communication between the Governor and the Chief Minister
Process of Appointment of Governors
The very appointment of type of persons appointed as Governors gives rise to misgiving among the Chief Ministers especially of the opposition ruled states. Such governors are often found to further the political designs of the ruling party at the Centre. Such appointments made on considerations ‘extraneous to merit’.[7]
According to the Administrative Reforms Commission (ARC) report, the prospective governor must possess ‘long experience and administration’[8] and is capable of rising above ‘party prejudices and predilections’[9]. It further recommends that the demitting Governors should not be considered for further appointment as Governor,[10] however, Sarkaria Commission has no objection if the person concerned is appointed for second term or is considered for appointment as Vice President.[11] However, it debars the Governor demitting office to engage in active politics.[12]
It has been argued that a person to be appointed as Governor should be a person of eminence in some walk of life; should be detached from active politics or not taken great part in politics particularly in the recent past.[13] The Administrative Reforms Commission also recommends that a judge who enters public life on retirement and becomes a legislator or holds “may not be considered ineligible for appointment as Governor”.[14] The Venkatchalliah Commission in its report concurred with the criteria as determined by the Sarkaria Commission.[15]
It would be advisable before appointing Governor, the chief Minister of the concerned state is informally consulted[16]. The Sarkaria Commission that before selecting the person for the position of Governor, the Vice President of India and Speaker of the Lok Sabha should be consulted confidentially and informally to avoid politicization of the process.[17] The National Commission to Review the working of the Constitution in its consultation paper suggested that Article 155 and 156 be amended to make way for a committee comprising the Prime Minister, Union Home Minister, Speaker of the Lok Sabha and Chief Minister of the State.[18] In Rameshwar Prasad v Union of India, the Supreme Court observed that there is a need to formulate a policy with some common parameters for appointment of Governor which is acceptable to all parties.[19]
To ensure impartiality of the Governor actions, it is essential to ensure that Governor enjoys fixity of tenure. If at all, Governor demits office before the expiry of the tenure of five years, the Union Government must lay a statement before both the houses of Parliament explaining the circumstances leading to the end of his tenure including the reply, if any, of the outgoing Governor.[20]
Discretionary Power of the Governor
The exercise of discretionary powers under the Constitution has been criticized especially in the opposition ruled states. The ARC in its recommendation suggested the enunciation of guidelines by the Inter-State Council on the manner in which discretionary powers are to be exercised. Further, these guidelines should be accepted by the Union Government and subsequently placed before both the houses of parliament.[21] The Sarkaria Commission also in its report recommended that the discretionary powers of the Governor should be left untouched. It is neither feasible nor advisable to regulate and restrict its exercise, it averred.[22] Article 163 does not give the Governor a general discretionary power to act against or without the advice of his Council of Ministers.[23] In the event of no party getting absolute majority in the assembly, the Governor has the discretion to ascertain the party or alliance that commands majority in the assembly. The Governor in such a situation should verify the numerical strength of the party or combination of parties before inviting its leader to form the government. His job is also to see that the government that is formed pursues the policies which he approves. [24]
The chief minister of such a combination should be asked to prove his majority maximum within 30 days of the swearing in.[25] If there are rival claimants for the position of the Chief Minister, the majority should be tested on the floor of the assembly.[26]
There are examples when there took place bulk dismissal of the state governments in 1977 and 1980 post general election and mid-term election results, even though the governments commanded majority in the respective assemblies. The ground was unfavourable election results in the Lok Sabha in 1977 and 1980.
The Governor’s power of discretion with regard to the dismissal of the Chief Minister should be exercised with caution and due diligence. Mere withdrawal of support of the members of legislative assembly from the government or the walk out an alliance partner from the alliance should not be the sole reason for dismissal of the government. The rival claims must be tested on the floor of the assembly and based on the test he should take appropriate decision. He should ask the governor to summon the assembly session for the specific purpose within a reasonable time, which normally is 30 days. It will save Governor from embarrassment consequent upon any error of judgment on his part.[27]
This vital aspect of the Constitution has been thrown to the winds on some occasions. For instance, in February 1997, the Kalyan Singh government of Uttar Pradesh was dismissed by the then Governor Romesh Bhandari and a new government under Jagdambika Pal was put in office without properly ascertaining the majority support. The Allahabad High Court took cognizance of the dismissal and ordered restoration of status quo ante. Subsequently, the apex court ordered composite floor test in the case Jagdambika Pal v Union of India and Ors., 1998. It was won by Kalyan Singh with 225 votes against Pal’s 196 votes.[28]
As regards, proroguing a house of legislature, the Governor, generally acts on the advice of the council of ministers. However, if the Chief Minister advises prorogation, when consideration of no-confidence against him is pending, the Governor may not accept outright the advice so given. He may advise the Chief Minister to postpone prorogation and first face the no-confidence motion. [29]
Under Article 174(2) of the Constitution, the Governor is empowered at his will to dissolve the assembly and hold mid-term poll. Article 174 (2)b enjoins that he can take such action without the advice of the Chief Minister. Article 163(2) also stipulates on discretionary matters; Governor’s decision shall be conclusive. The Administrative Reforms Commission recommends that the Governor should accept the advice of a Chief Minister defeated on the floor of the assembly for the dissolution of the assembly, if issue at stake is a major policy matters; however, on other occasions, he can use his discretion.[30]
Governors have adopted different approaches in the like situations. The assembly was dissolved in Kerala (1970), and in Punjab (1971) on the advice of the Chief Minister even their claim to majority support was doubtful. In similar circumstances, the assembly was not dissolved in Punjab (1967), UP (1968), MP (1969) and Odisha (1971).[31]
Imposition of President Rule Under Article 356
Another important issue that has caused political friction has been at times controversial imposition of President Rule invoking Article 356 by the Governors. Over hundred times, the state governments have been dismissed and President’s Rule imposed by the Congress Party; about ten times it occurred during the UPA I and UPA II rule from 2004 to 2014. During the NDA regime of A B Vajpayee and Narendra Modi, it has taken place on nine occasions. The indiscriminate use of Article 356 has come down following the landmark judgment of the Supreme Court in S R Bommai case in 1994.
In a number of situations of political instability in states, the Governors recommended President Rule without having exhausted all possible steps under the Constitution of exploring the possibility of an alternate stable government. In some of the cases, the Governors neither gave a fair chance to contending parties to form a Ministry nor allowed a fresh appeal to the electorate after dissolving the assembly. The Sarkaria Commission Report recommended that Article 356 should used sparingly and as last resort; it should not be used for settling political scores. It also said that parliamentary approval should be mandatory in order for the President to be authorized to dissolve the state legislature. The Punchi Commission advised that the Centre should bring only a specific troubled area under its jurisdiction and that too for a brief period, not exceeding three months.
The Venkatchallaih Commission observed that Article 356 should not be deleted but employed only as a last resort only after exhausting action under other Articles like 256, 257 and 355.[32] It also observed that the Governor’s Report under Article 356(1) should be a ‘Speaking Document containing a precise and clear statement of all material facts and grounds, on the basis of which the President may satisfy himself, as to the existence or otherwise of the situation contemplated in Article 356’.[33]
Reservation of Bills Passed by the State Legislature
Governor’s action of reserving the bills passed by the state legislature for consideration of the President has led to much ill feeling between the Governor and the Chief Minister resulting in adverse impact on governance of the state. The Venkatchalliah Commission Report suggested a time limit of six months for governor to grant assent or reserve bills for the President. It also prescribes time limit of three months for the President to decide on the fate of the reserved bills.[34] It is to be noted that since 2019, the Governments of West Bengal, Tamil Nadu, Kerala and Punjab have often complained about the ‘inordinate delay’ in according assent to the bills passed by their respective legislative assemblies.[35]
The Supreme Court verdict on Punjab clearly said governors must act within the four walls of the state legislature, and not flex a non-existing veto power over the bills. Subsequently, the bench advised Kerala Governor to take cognizance of the Punjab verdict in which the apex court addressed a grey area in the Constitution. Article 200 specifies three options before the Governor on the bills passed by the state legislature; he ‘shall declare’ his assent, withhold assent or reserve the bills for consideration of the President.[36] Later, it expressed its displeasure when it learnt that ten bills re-enacted by the Tamil Nadu assembly had been withheld. The Punjab verdict had made it amply clear that re-enacted bills by the state legislature, which had been withheld earlier, must be given assent by the governor.
Role of Governor as Chancellor of State Universities
The Governor also acts as Chancellor of the state universities. In April 2022, the Tamil Nadu Legislative Assembly, passed two bills which gave the power of appointing Vice Chancellor of public universities to the state government; the Governor is thus sought to be deprived of his power. The Bills have not received Governor’s assent.[37] In June 2022, the West Bengal University Laws (Amendment) Bill, sought to designate the Chief Minister of West Bengal as the Chancellor of 31 public universities in the state. As head of the universities, the Chief Minister is given the power to preside over the meetings of the University bodies like the Court/Senate.[38]
Earlier in 2021, Maharashtra amended the process to appoint the Vice Chancellor of state public universities. The amendment mandated the Search Committee to first forward the panel of names to the state government, which would recommend a panel of two names from the original panel to the Chancellor. The Chancellor has to appoint one of the two names from the panel as Vice Chancellor within 30 days. Prior to the amendment, a Search Committee forwarded a panel of at least five names to the Chancellor to choose from for appointment of Vice Chancellor.[39]
The Sarkaria Commission Report has clearly stated that Governor as Chancellor of state universities is not obliged to seek the advice of the state government when he acts as ex-officio Chancellor of state universities.[40] It also mentions that the Andhra Pradesh High Court in M Kiran Babu v Government of Andhra Pradesh has taken the same view.[41] The Punchi Commission observes that although it is not binding for the Governor to consult the Chief Minister in matters pertaining to universities but adds that it would be advantageous for him to consult the Chief Minister or the concerned Minister but he must act on his individual judgment. University Statute may, in some cases, may require him to consult as is the case with the Calcutta and Burdwan University Acts.[42]
The Governor has, however, no discretion in matters relating to the nomination of members to the Legislative Council. For the first time, this was exercised in Madras when C Rajagopalchari was nominated to Legislative Council in 1952 so that he could become Chief Minister. In the most recent case, Governor of Maharashtra was found dilly-dallying in the nomination of Uddhav Thakrey to Legislative Council in 2021.
Issue of Communication between Governor and the Chief Minister
Tussle also sometimes occurs on communication related issues between the Governor and the Chief Minister. Article 167 provides that it is the duty of the Chief Minister to communicate to the Governor all the decisions of the Council of Ministers on the development issues of the state as well as about the legislation in the pipeline. The ARC points out that the Governor should not only receive information, as per Article 167, but also should actively look for information relevant for the discharge of his duties.[43] ‘Chief Ministers and other Ministers should not stand in the way of information’. In the Governors’ Conference held in the first week of August 2024 also emphasized proactive role of the Governor in the affairs of the state.
Conclusion
It follows, therefore, that our Constitution has assigned to the Governor the role of a Constitutional sentinel as also of a vital link between the Union and the State. In matters of mutual interest, governor is supposed to play act as a channel of communication between the Union and the State. Conversely, in case of any directive from the centre under Articles 256 and 257, the Governor is duty bound to keep the Union informed about the manner in which directions are being executed. Since Governor holds an independent Constitutional office, the he is not subordinate or a subservient agent of the Union Government. However, in respect of certain specified functions, he acts an agent of the Union and hence he is accountable to the President. Article 159 binds him to preserve, protect and defend the Constitution and the law and also to devote himself to the service and well-being of the people of the State concerned.
[1] Muruganandham T, “Making Sense of Turf War Between Governors and State Government” published in New Indian Express, 3rd December 2023
[2] Sarkaria Commission Report
[3] Ibid Para 4.1.02
[4] Deka Kaushik and Menon K Amranath, ‘Governors’ Troubles’ in India Today, December 4,2023 Issue
[5] Ibid
[6] Ibid
[7] Sarkaria Commission Report, Para 4.6.02
[8] The ARC Report- Centre State Relations, June 1969, Recommendation 7
[9] Ibid
[10] Ibid
[11] Sarkaria Commission Report, Para 4.9.01
[12] Ibid
[13] Ibid Para 4.6.09
[14] The ARC Report, op.cit Recommendation 7
[15] Venkatchalliah Commission Report, Para 8.14.3
[16] The ARC Report, op.cit Recommendation 8
[17] Sarkaria Commission Report, Para 4.6.33, Also Punchi Commission Report (2010), Para 4.4.07
[18] Cited in the Punchi Commission Report, Para 4.4.09
[19] Ibid, Para 4.4.10
[20] Ibid Para 4.8.09
[21] The ARC Report, Centre-State Relations, Recommendation 9
[22] Sarkaria Commission Report, Para 4.13.03
[23] Ibid, Para 4.3.08
[24] Sarkaria Commission Report, Para 4.11.03
[25] Ibid Para 4.11.06
[26] Ibid Para 4.11.07
[27] Ibid Para 4.11.11 and 4.11.13
[28] Ramkrishnanan Venkitesh, ‘A Governor and a Politican’, frontline.thehindu.com, March 7, 1998
[29] Ibid Para 4.11.22
[30] The ARC Report, op.cit Recommendation 13
[31] The Sarkaria Commission Report, Para 4.4.06 (d)
[32] Venkatchalliah Commission Report, Para 8.18 and 8.19.2
[33] Ibid, Para 8.20.5
[34] Ibid, Para 8.14.4
[35] Muruganandhan T, “Making Sense of Turf War Between Governors and State Governments” published in the New Indian Express, 3rd December 2023
[36] Ibid
[37] Asthana Rajat, “Role of Governor in Public Universities” in http://www.prsindia.org
[38] Ibid
[39] Ibid
[40] The Sarkaria Commission Report (1883), Para 4.11.38
[41] Ibid
[42] Punchi Commission Report, Para 4.5.11
[43] The ARC Report, op. cit, Recommendation 14
Author: Parth Kumar
Juris Centre 