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The recent action taken by Tamil Nadu Governor R N Ravi to terminate the appointment of state minister V Senthil Balaji, who was arrested, has once again brought attention to the tussle between state governments and the Governor’s office. It has reignited the discussion regarding the necessity of the post of a Governor and if it should exist at all. However, the conflict between state governments and the office of the Governor are not a recent phenomenon with various states such as West Bengal, Kerala, Punjab, and others having witnessed it a number of times. But prior to delving into the discourse, it is imperative to first examine the position of the Governor.
“The governor assumes the role of the primary executive leader of the state.”
According to the provisions outlined in the Government of India Act of 1858, the position of Governor was subject to the oversight of the Governor General. According to the Government of India Act, 1935, which was implemented on April 1, 1937, Governors were entrusted with the duty of adhering to the counsel provided by provincial governments. The actions undertaken, ostensibly in the name of provincial autonomy, involved the appointment of Governors who were tasked with serving as representatives of the British Queen.
Later, the Constitution established an analogous system of governance in the states, mirroring the parliamentary structure adopted at the national level. The state executive is addressed in Articles 153 to 167 within Part VI of the Constitution. According to these, the state executive comprises several key components, namely the governor, the chief minister, the council of ministers, and the advocate general of the state. The governor assumes the role of the primary executive leader of the state. Similar to the President, he assumes the role of a nominal executive head, also referred to as a titular or constitutional head. The Governor is entrusted with the executive authority of the State. The individual in question will wield the executive authority, either by direct means or by delegating it to subordinate officers.
The phrase “officers subordinate to him” encompasses a minister of the state. The appointment of the Governor is carried out by the President through the issuance of a warrant, which is executed with the President’s signature and official seal. He can be considered as a candidate selected by the Central government. However, it was established by the Supreme Court in 1979 that the position of governor in a state does not fall under the category of employment within the jurisdiction of the Central government. The office in question operates autonomously as a constitutional entity, functioning independently from and not being subject to the authority or subordination of the Central government.
The Draft Constitution incorporated provisions for the Governor to be elected through a direct voting process, on the basis of universal adult suffrage. The Constituent Assembly made the decision to adopt the current method of Governor appointment by the President due to the incompatibility of directly electing the Governor with the parliamentary system implemented in the states. Additionally, the direct election approach has a higher likelihood of generating conflicts between the Governor and the Chief Minister of the state.
Argument: Problem lies not with the office of Governor
“The Governor can be characterised as a transient individual…”
Based on the records in the Constituent Assembly Legislative Debates archive, it is evident that while there was an agreement among the Constituent Assembly members regarding the preservation of the Governor’s position as the constitutional representative for the states in post-independence India, disagreements arose concerning the specific process and method of appointment. The concerns surrounding the adoption of Draft Article 131 (Article 155 of the Constitution) revolved around the need to prevent the proliferation of divisive forces and ensure the appointment of impartial individuals in ‘Raj Bhawans’. The Constitution makers engaged in extensive deliberation regarding the nature of the Governor’s office, drawing from the experiences of nationalist leaders in the British Indian provinces subsequent to the implementation of the Government of India Act of 1935.
Biswanath Das, a member hailing from Orissa and a prospective Governor of Uttar Pradesh, conveyed his concerns during the Assembly session on June 2, 1949, regarding the outcomes observed in the provinces subsequent to the assumption of power by Congress members in post-independence India. He said: In what manner has the Governor fulfilled their role and responsibilities? It is widely acknowledged, and has been reiterated by reputable individuals within this legislative body, that the Governor was merely a figurehead. If such a scenario were to occur, it raises the question of how the Governor, who has been nominated by the President and the Central Government, and the Ministers elected by the State Unions and the Provinces, would be able to effectively collaborate?
In addition, K T Shah, another member, said: “The Governor can be characterised as a transient individual…” It is inappropriate and unrealistic to propose that every executive action should be carried out under the authority of the Governor. Hence, in anticipation of the potential misuse of one’s position, certain individuals voiced concerns regarding the impartial operation of a Governor appointed with discretionary authority.
Dr B R Ambedkar expressed his views openly regarding the responsibilities of the President or the Governor, stating that their role within the administration is primarily symbolic, akin to a ceremonial instrument used to communicate the decisions made by the nation. The President or Governor is typically obligated to adhere to the counsel provided by their Ministers. He is unable to act in opposition to their advice, nor can he take any action without their guidance. The President of the United States possesses the authority to terminate the tenure of any Secretary at their discretion. The President of the Indian Union or Governor of State lacks the authority to do so, provided that his Ministers maintain a majority in Parliament. In a notable address delivered on June 2, 1949, Dr Ambedkar said the Governor, as outlined in the Constitution, lacks autonomous decision-making authority and is instead entrusted with specific responsibilities. However, the rationale behind the provisions granting the Governor the authority to exercise his discretion was not adequately elucidated, even by Ambedkar, during the deliberations. This particular domain has consistently presented perplexing enquiries, encompassing both legal and political dimensions.
According to Dr Ambedkar, the advantage of the parliamentary system is that “the assessment of responsibility of the executive is both daily and periodic. The daily assessment is done by members of Parliament, through questions, resolutions, no-confidence motions, adjournment motions, and debate on address. Periodic assessment is done by the electorate at the time of the election….”
Nehru concurred: “…We want to emphasise the Ministerial character of the Government, that power really resided in the Ministry and in the Legislature and not in the President or Governor as such. At the same time we did not want to make the President or Governor just a mere figurehead. We did not give him any real power, but we have made his position one of great authority and dignity.”
Argument: If the Governor’s post abolished, it will not make any difference
“He is a burnt out superannuated member of the ruling party,” for whom a governorship served as a form of opulent retirement”
Some constitutional experts hold the view that the elimination of the Governor’s position is warranted. The primary responsibility of a Governor entails administering the oath of office to the chief minister and the cabinet of ministers, as well as delivering an address to the assembly during its inaugural session. However, it is worth noting that these duties can alternatively be fulfilled by either the chief justice of the high court or the speaker of the assembly. The performance of Governors serving as chancellors of universities has been exceedingly poor, thus resulting in a lack of sentiment towards their absence in that role. Regarding the Centre-state relationship, it is possible to establish liaison officers who can operate from more modest offices, in contrast to the current Raj Bhavan that spans many acres and employs a large number of individuals solely for the service of a single family.
In his article titled “Raj Bhawan, Raj Dharma,” senior advocate Sriram Panchu raises the question of the necessity of a governor. If their current performance in various states is indicative of their future performance, it is possible that the outcome will be unfavourable. However, the post holds significance in terms of both constitutional and ceremonial purposes. The selection of suitable individuals and the implementation of an appropriate process that minimises favouritism and ensures fair recognition play a crucial role in achieving desired outcomes. One potential approach involves assembling a group of esteemed individuals from various sectors, including civil service, armed forces, academia, culture, and former ministers with reputable backgrounds. Although there are concerns regarding the impartiality of judges, this issue could be mitigated by implementing a roster system and ensuring that judicial candidates are not selected by the executive branch. The implementation of a designated cooling off period is necessary in order to mitigate the potential distractions posed by the allure of the post. A single five-year term would suffice. A judicious selection of a name for this panel should be made in collaboration with the chief minister to mitigate the risk of accommodating any potentially disruptive entity within Raj Bhavan. It is imperative to seek a specific level of prestige that is derived from both achievement and moral uprightness. An effective Governor serves as a valuable resource for the state, effectively navigating the complexities of the federal system.
According to historian Mukul Kesavan, the process of appointing governors and the lack of certainty regarding their tenure result in their being perceived as agents of the central government in politically charged situations, rather than impartial arbitrators. According to Kesavan, in the event that it is not possible to legislate the governors out of existence, a viable alternative would be to reduce the size of the office to accommodate their presence.
The Vidhi Centre for Legal Policy, a prominent think-tank, has conducted a comprehensive study titled “Heads Held High: Salvaging State Governors for 21st Century India.” This study suggests a reformation of the office of India’s governors, rather than advocating for its abolition. According to the authors, it is argued that the authority to appoint and dismiss governors should not solely be vested in the ruling party, but rather should be carried out in a manner that is characterised by increased federalism and cooperation. Additionally, the authors suggest that the Governor’s rationale for their decisions should be disclosed to the public, along with other proposed reforms. According to Lalit Panda, a co-author of the book, the transfer of Governor’s responsibilities to either the executive or the judiciary would pose a potential risk of politicisation for both entities.
For several decades, there has been an allegation among many that Governors have been interfering in the efficient operation of state governments that were politically opposed to the ruling party at the national level. BK Nehru, a prominent figure in Indian politics, held the governance of several Indian states throughout his extensive career, which concluded in the 1980s. Nehru himself once characterised this position as that of a “burnt out superannuated member of the ruling party,” for whom a governorship served as a form of opulent retirement. It is not unexpected that individuals who demonstrate unwavering support for a political party are often favoured for positions, frequently as a means of acknowledging their contributions.
According to the research conducted by Professor Ashok Pankaj, the majority of India’s Governors between 1950 and 2015 were primarily individuals with political backgrounds, accounting for 52% of the total sample. Additionally, retired bureaucrats constituted 26% of the governorship positions during the specified time period. The remaining individuals consisted of judges, lawyers, defence officials, and academicians. Approximately 20% of governors have previously served as Members of Parliament or legislators. Hence, there is a prevailing belief among many that the present moment necessitates the elimination of the gubernatorial position.
According to Gautam Bhatia, a lawyer based in Delhi, the Constituent Assembly made the decision to retain the post of Governors, despite the nationalist movement’s negative encounters with them for nearly three decades. Furthermore, the Assembly opted to maintain the discretionary power associated with this position. During the deliberations of the Constituent Assembly, it was observed that the provisions pertaining to the authority of the Governor closely resembled the corresponding clauses found in the 1935 Act, with minimal alterations. Advocates of the office put forth two overarching arguments: firstly, they contended that there was a scarcity of capable legislators within the various states; and secondly, they asserted that a certain level of power centralization was imperative in a developing nation like India. The Constituent Assembly members who expressed concern were provided with reassurances that the role of the Governor would be strictly limited to constitutional matters, devoid of any authority to meddle in the routine governance of the State.
The Supreme Court’s stand on office of Governor
“Governor is required to exercise their formal constitutional powers solely upon and in accordance with the aid and advice of their ministers, except in limited well-known exceptional circumstances”
The landmark case of Shamsher Singh v State of Punjab, decided in 1974 by a seven-judge Constitution bench of the Supreme Court, established that a Governor is required to exercise their formal constitutional powers solely upon and in accordance with the aid and advice of their ministers, except in limited well-known exceptional circumstances. These exceptions pertain to the removal of a government that no longer holds a majority, as well as the decision to invite a party to assume governance. These situations arise when the guidance and counsel of the Council of Ministers cannot be sought or cannot be relied upon. The satisfaction of the Governor is derived from the government’s possession of a majority in the House. In February 2023, the Supreme Court issued a ruling pertaining to the political crisis within the Maharashtra government. The court expressed its concern regarding the intervention of the Governor in resolving political rivalries. According to the Supreme Court, the Governor cannot exercise any power that has not been granted to them by the Constitution or a law enacted in accordance with it.
In the Shamsher Singh case, the Supreme Court reached a significant conclusion after examining the discussions held in the Constituent Assembly. It observed that prominent figures such as Jawaharlal Nehru, Sardar Vallabhbhai Patel, K.M. Munshi, B.N. Rau, Alladi Krishnaswami Ayyar, and particularly Dr B R Ambedkar, who served as the Chairman of the Drafting Committee, expressed a collective viewpoint with minor variations, which was the acceptance of a parliamentary-style quasi-federalism entailed the rejection of the underlying principles associated with a presidential-style Executive.
The Supreme Court also established the limits of gubernatorial overreach through a series of significant rulings, including the notable cases of S. R. Bommai (1994), Rameshwar Prasad (Bihar Assembly Dissolution Case of 2006), and Nabam Rebia (Arunachal Assembly Case of 2016). These decisions effectively eliminate or minimise the potential for excessive abuse of power, subject to the duration required for judicial review.
Recommendations of various commissions, committees regarding the Governor’s post
“The Governor should be appointed by a collegium consisting of the Prime Minister, the Chief Justice of India, and the Leader of the Opposition in the Lok Sabha”
The Administrative Reforms Commission (ARC) of 1969 made recommendations pertaining to diverse facets of administrative reforms, encompassing the responsibilities and operations of Governors. The ARC placed significant emphasis on the necessity of establishing a harmonious rapport between the Governor and the state government. It is advisable for Governors to collaborate with the Chief Minister and the Council of Ministers in order to foster cooperative federalism and facilitate efficient governance. The ARC has made a recommendation that Governors should serve as intermediaries between the central government and the state government. The ARC underscored the importance of Governors exercising specific discretionary powers while adhering to the constitutional framework and refraining from undue interference in the routine administration of the state. The ARC proposed that the removal of Governors from office should be limited to cases where there is substantiated evidence of misconduct or inability to perform their duties, while ensuring that proper legal procedures are followed. Additionally, it is suggested that Governors should be afforded the opportunity to voluntarily resign from their position prior to the completion of their term, on the condition that sufficient advance notice is provided.
The 1983 Sarkaria Commission was tasked with the examination of the intergovernmental relationship between the central government and the states in India. Although the proposal did not explicitly advocate for the elimination of the Governor’s position, it put forth several modifications aimed at augmenting the responsibilities and influence of Governors. There is a suggestion that Governors ought to possess a non-partisan and impartial disposition, while also maintaining a fixed tenure to uphold stability and continuity.
The Punchhi Commission, established in 2010, was tasked with conducting a comprehensive assessment of the Constitution’s efficacy and proposing strategies to enhance coordination among different governmental bodies. The commission proposed that the appointment of governors should involve consultation with the Chief Minister of the respective state, and that governors should be granted enhanced responsibilities in domains such as tribal welfare, regional development, and the promotion of cooperative federalism such as tribal welfare, regional development, and promoting cooperative federalism.
The 2015 Niti Ayog, a policy think tank, recommended the abolition of the Governor’s post in smaller states or union territories where the role was seen as redundant. It argued that the Governor’s functions could be carried out by the Chief Minister or other administrative mechanisms.
The National Commission to Review the Working of the Constitution in 2001, which is also known as the Justice Venkatachaliah Commission, proposed that the Governor should be appointed by a collegium consisting of the Prime Minister, the Chief Justice of India, and the Leader of the Opposition in the Lok Sabha. The commission also suggested that the Governor should have a limited role and should not interfere in the day-to-day administration of the state. The NCRWC recommended that the Governor’s role should be largely ceremonial and non-executive, and limit their involvement to constitutional duties.
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