Source:

https://scroll.in/article/903113/why-governor-satya-pal-maliks-decision-to-dissolve-jammu-and-kashmir-assembly-is-unconstitutional

Mentor’s Comment:

The question is based on the current debate which is going regarding the powers of Governors and his/her biased decision in favour of centre.

Introduction should mention that the rule based governance is more important than the politically motivated one. Also cite that how the governors failed in delivering unbiased decisions.

Further, we need to talk about the various powers to governors regarding state administration and also the power to recommend for President Rule in case of failure of state machinery. Analyze the various arbitrary decisions being given in recent years without caring for the rule of law undermining the democracy. (One can justify on both side, in support or against). Mention example of recent such incidents like J and K assembly dissolution.

Next mention how SC helps in establishing Rule of law in Governor’s functioning. Various judgments as examples. 

Conclude with your own note based on the points mentioned in answer.

Model Answer:

In a federal system, state governors, as the president`s representatives, play a unique role. Their duty is to be neutral guardians of the complex relationship between the federal government and state governments belonging to different political parties.

But this role got diluted after few decades into governance. Today governors are the handmaidens of the Union government, as Supreme Court said in one of the judgements ‘agents of the centre’. The Punchhi Commission rightly summarises this diluted role of governors-

1. The very appointment of Governor– As per Article 155, governor should be appointed (not elected) from amongst persons of high status with eminence in public. The elected government at the state is not even consulted while making appointment of the Governors. Further successive governments have reduced this important constitutional office to a sinecure and resting place for loyal and retired / about to retire politicians apart from docile bureaucrats.
2. The appointment and dismissal of the Chief Minister by Governor– After elections in the state, in case no party or pre-poll coalition has a clear majority, there is a convention to invite the largest party to form government in the state. This convention has been flouted many times at the whim of the governor. Eg- It is self-evident that these principles have been violated in the case of Manipurand Goa.
3. Constitutional independence demanded examining the result by own cognizance rather taking the advice of a Union minister or political affiliate. Eg. governor of Goa consulting cabinet minister Jaitley or governors preferring conspiracies to democracy.
4. The consent by governor on laws passed by state assembly– Under article 220 of the constitution, the Governor may or may not consent to the bill passed legislature of the state. He may refer it for consideration of the President. Although, he cannot withhold the assent if a bill is re-passed by assembly; but governor has discretionary power to reserve any bill for President’s signature. When president sends back the bill to assembly and assembly passes it again, it will again go to President but president can still withhold assent (Article 201). In this way, this power can be used by Governor to just put a bill in state of limbo for a long time.
5. The relation between Governor and Central Government – Since the report of Governor becomes the basis of imposing emergency in a state under article 356 the ruling party at centre would like to appoint as many as possible persons of its own party as governors of states. Eg- Uttarakhand crises, Arunachal Pradesh crises.
6. Removal of the Governor Article 156 says that the governor will hold office during the pleasure of the President for five years. President works on aid and advice of the Council of Ministers under Article 74. In effect it is the central government that appoints and removes the Governors. The governor has no security of tenure and no fixed term of office. Frequent removals and transfers of governors before the end of their tenure have also lowered the prestige of this office.
7. Many governors, looking forward to further office under the Union or active role in politics after their tenure, came to regard themselves as agents of the Union. The governor thus became a major issue affecting the equation between the Centre and the states.
8. Discretionary powers of the governor (Note that, U/A 163(2), what falls within the ambit of discretionary power of governor is also a discretion of the governor) has been one of the most debated issue post Arunachal Pradesh crisis. For instance the SC highlighted few aspects-

• The Governor is not an ombudsman for the Legislature nor the speaker’s mentor. The Governor can’t require the speaker to discharge his functions in the manner he considers constitutionally appropriate.
• Governor is not an elected representative, but only an executive nominee whose powers flow from the advice of the Cabinet. His tenure depends on the pleasure of the President.
• Using discretionary powers to summon or dissolve Assembly sessions without the aid and advice of the Chief Minister and his Cabinet is unconstitutional.

Way forward- Ex Prime Minister Manmohan Singh told the Governors to use the autonomy of their office “to do good” in these “turbulent times.” He told them that they worked under “public scrutiny” and they must “rise above partisan politics while discharging Constitutional obligations.”

1. The recommendations of the Sarkaria Commission and the Punchhi Commission report need to be examined closely to make proper amendments to the functions of the post of governor.
2. The Supreme Court Judgement (BP Singhal versus Union of India (2010) case) which curtailed the power of the Centre to dismiss state governments arbitrarily is commendable. Further the removal of governor from office must entail impeachment proceedings in the state assembly.
3. Governor’s office should be apolitical. There should be a panel involving the opposition, ruling party, civil society and the judiciary in the selection process of Governor. Governor should be appointed only after consultation with the CM of the state where he/she will work.
4. Discretionary powers should be curtailed. There should be proper guidelines on the appointment of CM. A Governor should not use his discretionary powers to run a parallel administration or a ‘diarchy’ challenging the existence of an elected State government.
5. A Governor can act in his own discretion if his actions are justified by or under the Constitution… but the Governor’s exercise of this discretion would be open to challenge where it can be shown to be perverse, capricious, fallacious, extraneous or for a motivated consideration.
6. Governors must not consult union ministers to decide what to do.

Conclusion:

• The governor’s role has became increasingly controversial with allegations of partiality and lack of objectivity in exercise of the discretionary powers. There is need for to recognise constitutionalism and democracy.
• Ex PM Dr. Manmohan Singh thought “there is a need for [the] Governors to play the role of elder statesmen in ensuring that inter-State issues are handled with sagacity without spilling over as major disputes and often, as law and order problems.