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Context

A tweet put out recently by the office of the Kerala Governor evoked nationwide attention. The Governor sent a letter to the Kerala CM asking him to act against the State Finance Minister, who, according to the Governor, had “ceased to enjoy” the Governor’s “pleasure”. The Chief Minister declined to do so.
In the recent past, Indian parliamentary democracy has witnessed several examples of Governor’s activism from Maharashtra to west Bengal with this being the latest incident.
In this context, this edition of the Burning issue will analyze the issues related to the Governor’s office, and the governor’s Activism and suggest a way forward.

About Governors Post in India

Parallel to President: The Governors of the states of India have similar powers and functions at the state level as those of the President of India at the Central level. The Governor’s post finds its origin in the Government of India Act, 1935.
Nominal head: The Governor acts as the nominal head whereas the real power lies with the Chief Ministers of the states and her/his councils of ministers.

Constitutional Provisions related to the Governor

Article 154: The executive power of the state shall be vested in the
Governor and shall be exercised by him either directly or through
officers subordinate to him in accordance with this Constitution.
Article 163 (1): There shall be a council of ministers with the chief minister as the head to aid and advise the Governor in the exercise of his functions, except in so far as he is required to exercise his functions at his discretion.
Article 163 (2): 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.

Governor’s Constitutional and Situational Discretion

Constitutional Discretion

Reservation of a bill for the consideration of the President (Articles 200 and 201).
Recommendation for the imposition of the President’s Rule in the state (Article 356).
While exercising his functions as the administrator of an adjoining Union territory (in case of an additional charge).
Special responsibility for 5th and 6th schedule areas.
Seeking information from the chief minister with regard to the administrative and legislative matters of the state.

Situational discretion

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.
Dismissal of the council of ministers when it cannot prove the confidence of the state legislative
assembly.
Dissolution of the state legislative assembly if the council of ministers has lost its majority.

Legislative Powers of the Governor

Governor summons the sessions of both houses of the state legislature and prorogues them.
The Governor can even dissolve the State Legislative Assembly.
These powers are formal and the Governor’s use of these powers must comply with the advice of the Council of Ministers headed by the Chief Minister.
He addresses the first session of the state legislature after the general elections in the state.

Appointments to the legislature

He appoints 1/6^th of members of the State Legislative Council in states wherever there is a bicameral legislature.
He nominates one member in the state legislative assembly from the Anglo-Indian Community if in view; the community is not well represented.
Governor is empowered under Article 192 to disqualify a member of the State legislature when the election commission recommends that the legislator is no longer complying with provisions of Article 191.

Passing of Bills

All the bills passed by the state legislatures are sent to the Governor for assent.
Once a bill is sent to Governor for assent, he can give assent to the bill, Withhold the assent, Return the bill to the legislature for reconsideration if it is not a money bill or Reserve the bill for consideration of the President.
If the bill is re-passed by the legislature with or without amendment, the Governor has to give assent to the bill.

When is the Bill sent to the President?

This is done under the circumstances when a bill:

Violates the constitution or against directive principles of state policy (DPSP)
Conflict with union powers
Against the larger interest of the country and people
May endanger the position of the high court in the state.

Ordinance making power

When the state legislature is not in session and the Governor considers it necessary to have a law, then the Governor can promulgate ordinances.
These ordinances are submitted to the state legislature at its next session.
They remain valid for no more than six weeks from the date the state legislature is reconvened unless approved by it earlier.

Executive functions of the Governor include

An important function of the Governor is to appoint the Chief Minister of the State.
Other ministers are also appointed by the Governor on the advice of the Chief Minister.
The ministers including the Chief Minister hold office at the pleasure of the Governor.
The Governor has the constitutional right to know the decisions of the Council of Ministers relating to the administrative affairs of the State and the proposals for legislation.

Nani A. Palkhivala- “The Constitution intended that the Governor should be the instrument to maintain the fundamental equilibrium of the people of the State and to ensure that the mandates of the Constitution are respected in the State”.

Storm in news: Doctrine of pleasure

The Doctrine of Pleasure is a special prerogative of the British Crown where a servant of the Crown holds office during the pleasure of the Crown and he can be dismissed from the service of the Crown at pleasure.
The tenure of the office of a civil servant can be terminated at any time without assigning any cause. The justification for the rule is that the crown should not be bound to continue in public service for any person whose conduct is not satisfactory.
In India, Article 310 of the Constitution says every person in the defense or civil service of the Union holds office during the pleasure of the President, and every member of the civil service in the States holds office during the pleasure of the Governor. However, Article 311 imposes restrictions on the removal of a civil servant.
Under Article 164, the Chief Minister is appointed by the Governor; and the other Ministers are appointed by the Governor on the CM’s advice. It adds that Ministers hold office during the pleasure of the Governor.
ISSUE: In a constitutional scheme in which they are appointed solely on the CM’s advice, the ‘pleasure’ referred to is also taken to mean the right of the Chief Minister to dismiss a Minister and not that of the Governor. This is what lies at the core of the Kerala Governor and Chief Minister’s current controversy.

Other Issues with Governors in India

Appointment by Union Only: This often leads to the appointment of persons aligning with the party’s ideology to the post of Governor and he/she remains faithful to the Union government of the day rather than acting on the advice of the State Executive.
Arbitrary removal: Even after the Supreme Court Judgement in B.P. Singhal v. Union of India calling for a fixed tenure for Governors to encourage neutrality and fairness in the discharge of their duties, it is not being implemented on the ground.
Withholding or delaying assent to State bills: The question of whether a Governor is permitted by the Constitution to cause uncertainty in the matter of giving assent to the Bills passed by State legislatures assumes great importance, the best example of it being the NEET bill controversy in Tamil Nadu.
Presidential Assent: The provision concerned makes it clear that a Bill can be reserved for the consideration of the President only if the Governor forms an opinion that the Bill would endanger the position of the High Court by whittling away its powers. The Constitution does not mention any other type of Bill which is required to be reserved for the consideration of the President. Nevertheless, the courts have conceded a certain discretion to the Governors in the matter of sending Bills to the President.
Constitution ambiguity: The Constitution does not mention the grounds on which a Governor may withhold assent to a Bill.
No remedy: The Indian Constitution does not provide any such remedy to tackle the above issue. The courts too have more or less accepted the position that if the Governor withholds assent, the Bill will go. Thus, the whole legislative exercise will become fruitless. It does not square with the best practices in old and mature democracies.
Lack of a timeline: Since the Constitution does not fix any timeline for the Governor to decide the question of assent, he can wait for any length of time without doing anything. This is illogical and militates against the constitutional scheme in respect of law-making by the legislatures.
Misuse of discretionary powers: States allege that this provision has often been misused by the Governor who acts on the behest of the union government which is opposed to the basic scheme of the Indian Constitution.
Contradictory Aid and advise and Discretion: Article 163(1) says that the Council of Ministers must aid and advise the Governor. However, according to Article 163(2), the Governor can act at his discretion in certain matters as permitted by the Constitution
Apparatus of interaction missing: There are no provisions laid down for how the Governor and the state must engage publicly when there is a difference of opinion. The management
Political appointment: This is because Governors have become political appointees. Politicians become Governors and then resign to fight elections.
Nature of appointment: In the Constitution, there are no guidelines for the exercise of the Governor’s powers, including for appointing a CM or dissolving the Assembly.
Defying constituent assembly: The Constituent Assembly envisaged Governor to be apolitical.
Nature of appointment: The CM is answerable to the people. But the Governor is answerable to no one except the Centre.
Constitutional vacuum: One can relate it with ideas of constitutional morality and values, but the truth is there is a fundamental defect in the Constitution.
Security of Tenure: There is no provision for impeaching the Governor, who is appointed by the President on the Centre’s advice. While the Governor has 5-year a tenure, he can remain in office only until the pleasure of the President.
Powers in legislation: There is no limit set for how long a Governor can withhold assent to a Bill.

SC judgments related to Governor’s post

B.P. Singhal Vs Union of India

In the B.P. Singhal versus Union of India (2010) SC said “A Governor is neither an employee nor an agent of the Union Government… Like the President, Governors are expected to be apolitical, discharging purely constitutional functions, irrespective of their earlier political background.
“Governors cannot be politically active. While some of them may come from a political background, once they are appointed as Governors, they owe their allegiance and loyalty to the Constitution and not to any political party.”
It was also held that judicial review of withdrawal of pleasure was limited in the case of a Governor and that only when a prima facie case of the arbitrariness of mala fide was made out, could the court require the Centre to produce materials to satisfy itself that the withdrawal of pleasure was for good and compelling reasons.

Nabam Rebia & others

The Nabam Rebia judgment was a consequence of the Arunachal Pradesh Governor J.P. Rajkhowa’s decision to advance the Assembly session, a move which led to unrest in the State and culminated in the President’s rule. The Constitution Bench held Mr. Rajkhowa’s decision to be a violation of the Constitution.
The SC said: “It is an accepted principle that in a parliamentary democracy with a responsible form of government, the powers of the Governor as Constitutional or formal head of the State should not be enlarged at the cost of the real executive, viz. the Council of Ministers.”
The Supreme Court highlighted how Article 163 of the Constitution does not give the Governor a “general discretionary power to act against or without the advice of his Council of Ministers”.

Way forward

Recommendations of the Punchhi Commission and Sarkaria Commission: should be considered as guiding light for the appointment and conduct of the Governors.
Various Supreme Court Judgments should also serve as directions for the union and state governments to deal with the office of Governors.
Governor’s office should be apolitical. A collegium involving the CM, opposition, and the judiciary in the selection procedure of the Governor. Governor should be appointed only after consultation with the CM of the state where he/she will work.
Constitutional amendments should be done in relevant articles to curtail the Discretionary powers of the Governor, including setting a timeline for assent to bills in important matters.
The Governor should diligently follow the “Doctrine of neutrality” to be seen as a patron of the state rather as a ‘union’s agent.

Conclusion

It is worth noting here that during the Constituent Assembly debates Dr. B. R. Ambedkar categorically stated: “If the Constitution remains in principle the same as we intend that it should be, The Governor should be a purely constitutional Governor, with no power of interference in the administration of the province…”