Role of Governor in the working of Democracy

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Context: The office of Governor has frequently been under attacks, usually for functioning at the behest of the ruling party at the Centre. A recent example is the political crisis in Rajasthan- the Congress MLAs are protesting the conduct of Governor Kalraj Mishra, who has refused to call a session of the assembly as sought by the chief minister to prove his majority on the house floor. Due to such incidents, negative terms like an agent of the Centre, Puppet and rubber stamps are used to describe a governor of the state. 

Relevance:
Prelims: Indian Polity and Governance – Constitution, Political System, Panchayati Raj, Public Policy, Rights Issues, etc.
Mains: GS II-

  • Functions and responsibilities of the Union and the States, issues, and challenges pertaining to the federal structure, devolution of powers and finances up to local levels and challenges therein.
  • Separation of powers between various organs disputes redressal mechanisms and institutions.


Historical Background

  • The Governors under the Government of India Act 1935 were “by the Raj, of the Raj and for the Raj”.
  • The constituent assembly wanted elected governors as proposed by a sub-committee of B.G. Kher, K.N. Katju and P. Subbarayan.
  • The apprehension of the clash between powers of Governor and Chief minister led to the system of appointed Governor in the state.
  • The draft constitution of 1948 was ambivalent– the drafting committee leaving it to the constituent assembly to decide whether governors should be elected or nominated.


Constitutional Provisions related to Governor

  • The Governor’s appointment, his powers and everything related to the office of Governor has been discussed under Article 153 to Article 162 of the Indian Constitution.
  • The appointment and powers of government can be derived from Part VI of the Indian constitution.
  • Article 153 says that there shall be a Governor for each State. One person can be appointed as Governor for two or more States.
  • Article 154 says that the Governor, as the chief executive head of the state, would exercise his executive powers directly or through his subordinate to him in accordance with the Constitution.
    • However, like the President, he is a nominal (Constitutional) executive head.
  • Appointment of the governor:
    • The Governor is appointed ‘by the President by warrant under his hand and seal' (Art.155), on the recommendations of Union Councils of Ministers.
    • On the Governor being a nominee of the central government, the Supreme Court, in 1979, has held that the post of a Governor is not an employment under the Central Government and asserted that being an independent Constitutional office it is not under the control of or subordinate to the Central Government.
  • Conditions of Governor's office:
    • Article 157 and Article 158 of the Constitution of India specify eligibility requirements for the post of governor. A governor must:
      1. Be a citizen of India.
      2. Be at least 35 years of age.
      3. Not be a member of either house of the parliament or house of the state legislature.
      4. Not hold any office of profit.
  • Office term:
    • According to Art. 156 of the Constitution the Governor’s usual term of office is 5 years that he spends during the pleasure of the President.
    • The 5 years term can be terminated earlier by:
      1. Dismissal by the president on the advice of the council of minister headed by the prime minister of the country.  Dismissal of governors without a valid reason is not permitted. However, it is the duty of the President to dismiss a governor whose acts are upheld by courts as unconstitutional and malafide.
      2. Resignation by the governor.
  • It is stated that the Governor has a dual role.
    • He is the constitutional head of the state, bound by the advice of his council of ministers.
    • He functions as a vital link between the Union Government and the State Government.
  • A Governor has the same executive, legislative, financial, judicial and some other powers including emergency ones as the President of India has. However, he has, unlike the President, no diplomatic and military powers.
  • Article 162 states that subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has the power to make laws:
    • Provided that in any matter with respect to which the Legislature of a State and Parliament have the power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.
    • Among the Executive powers of a Governor fall the appointments of Chief Minister, Councils of Ministers, Advocate General of the state, Chairman and members of State Public Commission and Election Commissioner of the state.
  • Discharging his legislative powers a Governor can:
    1. Summon, Prorogue and dissolve the State Legislature.
    2. Appoint 1/6 the members of the Legislative Council.
    3. Make law through ordinances address the first session of State Legislature after the election and at the beginning of each new session.
    4. Given assent to the Bills so that they become laws.
    5. Send messages to State Legislature on Bills pending before it.
    6. Nominate one member from the Anglo-Indian community.
  • Discharging his financial powers a Governor:
    1. Ensures that the State budget (Annual Financial Statement) is laid before the State Legislature.
    2. Has the power to recommend all the money bills that are to be introduced in the State Legislature.
    3. To meet any unforeseen expenditure can make advances out of the Contingency Fund of the State.
  • Discharging his Judicial Powers a Governor can:
    • Grant pardons, reprieves, respites or remissions of punishment or suspend, remit and 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 (Art. 161).
    • Appoint Judges of courts below the High Court.
    • Be consulted by the President in the matter of the appointment of the Chief Justice and other Judges of the High Court.
  • Under the Emergency powers a Governor:
    • Reports to the President if the State Government is not functioning Constitutionally and recommends President Rule (Art. 356)
    • Becomes ‘agent of the Union Government in the State’ when the President’s Rule is in progress.
    • Takes over the functions of administration directly under his command and runs the state with the aid of the Civil Servants.


Analysis and issues in working of the governor

  • There are numerous examples of the Governor’s position being abused, usually at the behest of the ruling party at the Centre. The process of appointment has generally been the cause behind it.
    • The post has been reduced to becoming a retirement package for politicians for being politically faithful to the government of the day.
  • In several cases, politicians and former bureaucrats identifying with a particular political ideology have been appointed as the Governors by the Governments.
    • This goes against the constitutionally mandated neutral seat and has resulted in bias, as appears to have happened in Karnataka and Goa.
  • The Governors Committee (1971) laid down the responsibility on the governor to see that the administration of the State does not breakdown due to political instability and he must send a regular report about the political situation of the State.
    • However, the imposition of President’s rule (Article 356) in case of breakdown of constitutional machinery in a State has been frequently misused by the central government.
  • Governor’s work is bound by the aid and advice of his council of ministers, this has brought down the significance of the office to a mere rubber stamp.
  • This is reflected in TB. Pattabhi Sitaramayya (a former Governor of Madhya Pradesh) observation that he had no public function to perform except making the fortnightly report to the President.
  • The arbitrary removal of the Governor before the expiration of his tenure has also been an important issue in the recent past.
    • The Governor cannot be removed on the ground that he is out of sync with the policies and ideologies of the Union government or the party in power at the Centre.
    • Nor can he be removed on the ground that the Union government has lost confidence in him.
  • Governor’s discretionary powers to invite the leader of the largest party/alliance, post-election, to form the government has often been misused to favour a particular political party.
    • Discretionary powers of the Governor means the powers which she/he exercises as per one’s own individual judgment or without the aid and advice of the Council of Ministers.
    • The Governor has to perform the duties as head of the state and as an agent of the central government and to use this discretionary power, within the particular context of our quasi-federal Constitution.
    • The flaw lies not with the identity of the individual who occupies the post, but in the design of our Constitution itself.

Constitutional discretion:

  1. The Constitution makes it clear that if any question arises whether a matter falls within the governor’s discretion or not, the decision of the governor is final and the validity of anything done by him cannot be called in question on the ground that he ought or ought not to have acted in his discretion.
    • Example of misjudgment:
    • Determining the amount payable by the Government of Assam, Meghalaya, Tripura and Mizoram to an autonomous Tribal District Council as royalty accruing from licenses for mineral exploration
    • According to the Sixth Schedule, if any dispute arises as to the share of such royalties to be made over to a district council, it shall be referred to the governor for determination and the amount determined by the governor in his discretion shall be deemed to be the amount payable to the district council and the decision of the governor shall be final.
  2. Seeking information from the chief minister with regard to the administrative and legislative matters of the state.
    •  Example of misjudgment:
    • Many governors have been criticised for expanding their discretionary powers suo motu.
    • Tamil Nadu (TN) governor Banwarilal Purohit has been criticised for running a parallel administration of universities within TN and appointing vice-chancellors without consulting the state government. He was already under fire for conducting “review meetings” of government schemes.
  3. While exercising his functions as the administrator of an adjoining Union territory (in case of an additional charge)
    •  Example of misjudgment:
    • The Supreme Court’s intervention in the constitutional status of the Lieutenant Governor (L.G.) of Delhi following his tussle with the Delhi government has once again exposed the fissures in the federal structure of the country.
    • The five-judge bench of the Supreme Court in its judgment in Government of Delhi vs Union of India stated that the elected representative was the real executive and that the L.G. must act as per the “aid and advice” of the elected government except in matters of land, police and public order.

Situational discretion:

  • Reservation of a bill for the consideration of the President, Situations are mentioned in Article 200, when Governor will reserve the bill, yet he can use, discretion regarding this matter.
  • In circumstances like the imposition of the President’s Rule in the state, if the Governor reports to the President a breakdown of the constitutional machinery in the State, it is clearly in accordance with his discretionary power.
  • However, we have seen in the past, such powers have led to conflicts from time to time.
  • Appointment of the chief minister when no party has a clear-cut majority in the state legislative assembly or when the chief minister in office dies suddenly and there is no obvious successor.
  • Example of misjudgment: 
    • In such cases, the governor can favour one political party over others and may even elect a chief minister even with fewer supporters and ask him to prove the majority in a specified time. This may even lead to horse-trading and defections as it happened in Karnataka and Maharashtra recently.
  • Dissolution of the state legislative assembly if the council of ministers has lost its majority
  • The Governor summons prorogues and dissolves the Legislative Assembly, according to article 174. When the ministry loses the majority and if the Governor is satisfied, s/he may dissolve the House.
  • Governor may or may not be advised by the ministry to dissolve the Assembly. In this case, the Governor is fully entitled to act according to his discretion, in the interest of the ruling party thereby leading to conflicts.


Recommendations to tackle the challenges

S.R. Bommai Judgment:

  • Supreme Court issued the historic order, which in a way put an end to the arbitrary dismissal of State governments under Article 356 by spelling out restrictions.
  • The verdict concluded that the power of the President to dismiss a State government is not absolute.
  • The verdict said the President should exercise the power only after his proclamation (imposing his/her rule) is approved by both Houses of Parliament.
  • Till then, the Court said, the President can only suspend the Legislative Assembly by suspending the provisions of Constitution relating to the Legislative Assembly.
  • The case becomes one of the most cited whenever hung Assemblies were returned and parties scrambled to form a government.
  • The case put an end to the arbitrary dismissal of State governments by a hostile Central government.
  • The verdict ruled that the floor of the Assembly is the only forum that should test the majority of the government of the day and not the subjective opinion of the Governor.
  • It also started the concept of the floor test.
  • SC issues ordered which stated that, if the Presidential proclamation is not approved by the Parliament then,
  • Both Houses of Parliament disapprove or do not approve the Proclamation, the Proclamation lapses at the end of the two-month period. In such a case, the government was dismissed revives.
  • The Legislative Assembly, which may have been kept in suspended animation gets reactivated.
  • Also, the Court made it amply clear that a Presidential Proclamation under Article 356 is subject to judicial review.
  • Impact of judgment:
    • The Court reinstated the governments in Arunachal Pradesh and Uttarakhand which were suspended after the arbitrary imposition of the President’s Rule.

 

Floor test:
  • A floor test can be explained as a motion initiated by the government in a position seeking to know if it enjoys the confidence of the legislature.
     
  • A floor test can be explained as a motion initiated by the government in a position seeking to know if it enjoys the confidence of the legislature. 
How is a floor test conducted?
  • When a floor test is called for in the assembly of a state, the chief minister will move a vote of confidence and prove that he has the majority support. If the floor test fails, the chief minister will have to resign. 
  • The whole idea of a floor test is incorporated in the constitution of India to ensure transparency in the constitutional process.
How is the voting done?
  • These are the modes by which voting can be conducted:
  • Voice vote: In a voice vote, the legislators respond orally.
  • Division vote: In case of a division vote, voting is done using electronic gadgets, slips or in a ballot box.
  • Ballot vote: Ballot box is usually a secret vote – just like how people vote during state or parliamentary elections. 
Pro-tem speaker :
  • The pro-tem speaker’s role is crucial in conducting a floor test. Conventionally, the longest-serving House member is nominated as pro tem speaker, whose role is limited to administering oath to new MLAs and conducting the election of the full-time speaker.

 

The Sarkaria Commission (1988):

  • Recommended that Article 356 should be used in very rare cases when it becomes unavoidable to restore the breakdown of constitutional machinery in the State.
  • The commission recommended that before taking action under Article 356, a warning should be issued to the state government that it is not functioning according to the constitution.
  • On the issue of appointment of the Governors, it made some important recommendations as given in the following:
                               Recommendations on the appointment of governors 
  • The Governor should be eminent in some walk of life and from outside the state. He should be a detached figure without intense political links or should not have taken part in politics in the recent past. Besides, he should not be a member of the ruling party.
  • He should be removed before his tenure only on the grounds as mentioned in the constitu¬tion or if aspersions are cast on his morality, dignity, constitutional propriety, etc.
  • He should be appointed after effective consultations with the state Chief Minister and Vice President and Speaker of the Lok Sabha should be consulted by the PM before his selection.
  • In the process of removal, the state government may be informed and consulted.
  • As far as possible, the governor should enjoy the term of five years.


Punchhi Commission (2007):

  • A Commission headed by former Chief Justice of India M M Punchhi was set up in April 2007 to take a fresh look at the roles and responsibilities of governments at various levels, and the relations between them. The Commission recommended that there should be clear guidelines for the appointment of Chief Ministers so that there was some sort of regulation on the discretionary power of the Governor.
    1. It said that a pre-poll alliance must be treated as one political party, and laid down the order of precedence that the Governor must follow in case of a hung House:
      • The group with the largest pre-poll alliance commanding the largest number;
      • Single largest party with the support of others;
      • Post-electoral coalition with all parties joining the government;
      • Post-electoral alliance with some parties joining the government, and the remaining, including Independents, supporting from outside.
    2. Like Sarkaria commission, it also recommended that the person who is slated to be a Governor should not have participated in active politics.
    3. It recommended that state chief minister should have a say in the appointment of the governor.
    4. It also recommended that Appointment of the governor should be entrusted to a committee comprising the Prime Minister, Home Minister, Speaker of the Lok Sabha and chief minister of the concerned state.
      • The Vice- President can also be involved in the process.
    5. The commission recommended that the doctrine of pleasure should end and should be deleted from the constitution.
    6. It recommended that the Governor should not be removed at the whim of the central government. Instead, a resolution by state legislature should be there to remove Governor.


The Administrative Reforms Commission (1968):

  • The Administrative Reforms Commission (1968) recommended that the report of the governor regarding the president's rule has to be objective and also the governor should exercise his own judgment in this regard.


The Rajamannar Committee (1971):

  • The Rajamannar Committee (1971) recommended the deletion of Articles 356 and 357 from the constitution of India. The necessary provisions for safeguards against arbitrary action of the ruling party at the Centre under Article 356 should be incorporated in the constitution.
  • The Rajamannar Committee emphasised that the governor of the state should not consider himself as an agent of the centre but play his role as the constitutional head of the State.


“Justice V.Chelliah Commission” (2002):

  • “Justice V.Chelliah Commission” (2002) recommended that Article 356 must be used sparingly and only as a remedy of the last resort after exhausting all actions under Articles 256, 257 and 355.


Nabam Rebia judgment (2016):

  • The Supreme Court in the Nabam Rebia judgment (2016) ruled that the exercise of the Governor’s discretion Article 163 is limited and his choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution.

 

                                                Constitutional provisions
Article 163  It talks about the discretionary power of the governor.
Article 256 The executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.
Article 257 The executive power of the Union shall also extend to the giving of directions to a State as to the construction and maintenance of means of communication declared in the direction to be of national or military importance
Article 355 It entrusts the duty upon Union to protect the states against “external aggression” and “internal disturbance” to ensure that the government of every State is carried on in accordance with the provisions of the Constitution.
Article 355 In the event that a state government is unable to function according to constitutional provisions, the Central government can take direct control of the state machinery. The state's governor issues the proclamation, after obtaining the consent of the President of India.
Article 357 It deals with Exercise of legislative powers under Proclamation issued under Article 356 by the central government.

 

Way Forward:

  • For the smooth functioning of a democratic government, it is equally important that the governor must act judiciously, impartially and efficiently while exercising his discretion and personal judgment.
  • In the current political climate examples being Goa (2017), Meghalaya (2018), Manipur (2017) and Karnataka (2018) and Maharashtra (2019), point to the need to ensure proper checks and balances to streamline the functioning of this office.
  • In order to enable the governor to successfully discharge his functions under the constitution, and agreed 'Code of Conduct' approved by the state governments, the central government, the parliament, and the state legislatures should be evolved.
  • 'Code of Conduct' should lay down certain 'norms and principles' which should guide the exercise of the governor's 'discretion' and his powers which he is entitled to use and exercise on his personal judgment.
  • The 'procedure for appointment of governors should be clearly laid down' and conditions of appointment must also be laid down and must assure a fixed tenure for the governor so that the governor is not under the constant threat of removal by the central government.
  • It is necessary to invest the office of the Governor with the requisite independence of action and to rid them of the bane of ‘instructions’ from the Central Government.
  • It is suggested that the exercise of 'discretionary powers' by the Governors should be 'guided by the healthy and democratic conventions’.
  • The Bommai verdict allows the Supreme Court to investigate claims of malafide in the Governor’s report, a similar extension to cover malafide in the invitation process could be a potential solution.
  • The SC has many times emphasized the urgent need for implementing Sarkaria commission’s recommendations on selection and appointment of governors. 
  • In light of this, proper implementation of these recommendations would help in protecting the sanctity of the office of the Governor.
  • The role of governor is indispensable for the successful working of the constitutional democracy. He must refrain from aligning himself to any political ideology. The virtue of impartiality must be withheld to ensure a free and fair election in a democracy.



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