The Governor is under the Constitution, not above it
GS Paper: 2- Governor
Important for
Prelims exam: Provisions related to governor
Mains exam: Issues related to governor’s role
Context
- In recent years, there has been a grave erosion of constitutional provisions, constitutional morality, and constitutional ethos being witnessed among various constitutional bodies. The conduct of the Governors of some States (especially where there are non-BJP governments) has undermined the Constitution and its limitations.
- For example, Recently, Kerala Governor warned ministers that the statements of individual ministers that lower the dignity of the Governor’s office can invite action including withdrawal of pleasure.
About Governor
The governor serves as the state’s nominal executive head. He serves as the chief executive head and is a significant member of the state executive. Each state’s governor is chosen by the central government.
Constitutional provisions
- Article 153 provides a Governor for each State.
- The executive power of the State shall be vested in the Governor by virtue of Article 154.
- Article 154(2) (a) prohibits the Governor from exercising any function “conferred by existing law on any other Authority”.
- Article 163 provides that “there shall be a council of ministers with the Chief Minister at the head to aid and advise the Governor except in so far as he is by or under the Constitution required to exercise his function or any of them in his discretion”.
Judicial judgements
Acting in harmony
- The Supreme Court in Shamsher Singh vs State of Punjab and Anr decided on this issue in 1974: The Governor exercises “all his powers and functions” by making rules for the convenient transactions of the business of the government of the State in accordance with Article 166 of the Constitution. These are called Rules of Business.
- The Court however amplified that “wherever the constitution requires satisfaction of the President or the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and 360. The satisfaction required by the Constitution is the satisfaction of the President or of the Governor in the Constitutional sense under the Cabinet system of the Government”.
- The Court went on to hold that “the discretion conferred on the Governor means that as the Constitutional or the formal head of the State, the power is vested in him” and that it is only in the exercise of the power under Article 356 that the Governor will be justified in exercising his discretion even against the aid and advice of his council of ministers as per his discretionary power.”
- “But in all other matters where the Governor acts in his discretion, he will act in harmony with his Council of Ministers. The Constitution does not aim at providing a parallel administration. The basic philosophy is that in a democracy, the elected Ministers must accept responsibility for every executive act and that the Council of Ministers alone represents a responsible form of government in the States.
Constituent Assembly Debates
- It was hotly debated whether the Governor should be appointed by the President of India or should be elected. Fearing that this would create a parallel State leadership, the Assembly instead adopted appointment by the President.
- B.G. Kher said that a Governor can do a great deal of good if he is a good Governor and he can do a great deal of mischief, if he is a bad Governor, in spite of the very little power given to him under the Constitution.
- B.R. Ambedkar said, “The Drafting Committee felt as everybody in this House knows, that the Governor is not to have any kind of functions — to use a familiar phraseology, no functions which he is required to discharge either in his discretion or in his individual judgment. According to the principles of the New Constitution, he is required to follow the advice of his ministry in all matters. Therefore, the real issue before the House is not nomination or election, but what powers you propose to give to your Governor. If the Governor is a purely constitutional Governor with no more powers than what we contemplate expressly to give him in the Act. I personally do not see any very fundamental objection to the principle of nomination.”
The reality today
- These debates give us sufficient indication of the role, the powers, and the duties of the Governor. Certainly, the Governor has no powers to interfere with the administration in day-to-day affairs including refusing assent to Bills passed by the Assembly. But what is happening today, especially in Opposition-ruled States is a disregard by Governors for the Constitution.
- What is happening today, especially in Opposition-ruled States is a shocking disregard by Governors for the Constitution. Surprisingly, the Governors in ruling States are silent on any issues demanding the discharge of their duties.
- Arif Mohammed Khan, the governor of Kerala, and the state government disagree strongly on a number of subjects. The most recent controversy started when he asked numerous vice chancellors to quit after the Supreme Court invalidated the nomination of the vice chancellor of a technical institution. The Governor has also asked K. N. Balagopal to be removed from his Cabinet as a result of the State’s Finance Minister’s remarks, claiming that it is no longer a joy to have him on the Council of Ministers.
- Under the English common law’s “pleasure doctrine,” the monarch has the right to terminate any employee’s employment at any moment. According to Article 164, the Governor appoints the Chief Minister, and the Governor consults the CM before appointing the other Ministers. It also states that Ministers serve at the Governor’s pleasure. The term “pleasure” is also understood to refer to the Chief Minister’s authority to fire a Minister, not the Governor, in a constitutional arrangement where they are appointed exclusively on the CM’s advice. In other words, a minister cannot be fired by a state’s governor in India.
Way forward
Sarkaria Commission’s recommendations on the function of the governor:
The Parliament should codify the following suggestions made by the Commission about the Governor:
- The Chief Minister should be involved in the selection process: The President’s authority in the area of governor selection and appointment should not be diminished. However, the President should only choose a State’s governor after consulting with the state’s chief minister.
- In order to give a governor enough time to complete his duties, the five-year term should typically be followed. Removal or transfer should take place in accordance with the same process as appointment, i.e., following consultation with the Chief Minister of the concerned State.
- Governor should express assent or dissent in a timely manner: There should be a deadline of six months within which the Governor must decide whether to provide assent or hold a bill for the President’s consideration.
- If the Bill is reserved for the President’s consideration, there should be a time frame within which the President must decide whether to give his assent, instruct the Governor to send it back to the State Legislature, or seek the Supreme Court’s opinion on whether the Act is constitutional under article 143.
Conclusion
A crucial element in connections between the centre and the states is the governorship. When the centre and the state have different governments, the governors’ function is frequently contested. The centre has appointed the governor for political reasons. However, the governor must respect the constitutional position he occupies and carry out his obligations without prejudice or allegiance.