Context

• A tweet put out recently by the office of the Kerala Governor evoked nationwide attention for all the wrong reasons. It said: “the statements of individual Ministers that lower the dignity of the office of the Governor can invite action including withdrawal of pleasure”. 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.

Who is a Governor?

• 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.
• 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.
• Similar offices: Governors exist in the states while Lieutenant Governors or Administrators exist in union territories including National Capital Territory of Delhi.
• Non-local appointees: Few or no governors are local to the state that they are appointed to govern.

Important Constitutional Provisions related to Governor

• Article 153: It requires a governor to be appointed for every state in India.
• Article 154: Vests the executive power of the State in the Governor
• Article 155: Appointment of the Governor
• Article 156: Term of Office of Governor
• Article 157: Qualifications for appointment as Governor

Executive functions of 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 during 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.

What are the contradictory issues with Governor’s office?

• Bound by the principle: The function of the appointed Governor is always subject to the policies of the elected government, and not vice-versa. This is a foundational theory of India’s constitutional democracy.
• 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 in his discretion in certain matters as permitted by the Constitution
• Discretion still bounds by cabinet decision: Governor is generally bound by the Cabinet decision except when he has a legitimate right to invoke his discretion, say, for example, in deciding on sanction to prosecute a cabinet minister or in his decisions as Administrator of a Union Territory, as per the orders of the President of India, etc.
• Apparatus of interaction: There are no provisions laid down for the manner in which the Governor and the state must engage publicly when there is a difference of opinion. The management of differences has traditionally been guided by respect for each other’s boundaries.

Issues of “Pleasure” of Governor

• Constitution Bench judgment of Supreme court in Shamsher Singh vs State of Punjab (1974) case:
• In Shamsher Singh, for the purpose of comparison, the Supreme Court extracted Dr. B.R. Ambedkar’s introductory statement made on November 4, 1948, in the Constituent Assembly, which said: “The President of the United States is not bound to accept any advice tendered to him by any of his secretaries. The President of the Indian Union will be generally bound by the advice of his Ministers. He can do nothing contrary to their advice nor can he do anything without their advice. The President of the United States can dismiss any Secretary at any time. The President of the Indian Union has no power to do so, so long as his Ministers command a majority in Parliament”.
• The same principles apply to the Governors as well, since the Union Minister also holds the office “during the pleasure of the President” as in Article 75(2) of the Constitution.
• “Withdrawal of pleasure”, without advice from the Council of Ministers, as indicated by Raj Bhavan is a misconception.
• Historical background of Article 264:
• The draft Constitution, prepared by the Constitutional Adviser in October 1947, contained Article 126, according to which, “Governor’s Ministers shall be chosen and summoned by (the Governor) and shall hold office during his pleasure”.
• This Article, which was made part of the draft of the erstwhile Article 144, was discussed at length in the Constituent Assembly.
• The general discretion with the Governor was taken away, and the Cabinet was given the authority to rule. Amendment to the draft Article 144 moved by B.R. Ambedkar resulted in the present constitutional scheme of Articles 163 and 164.
• According to the Scholar Subhash C. Kashyap:
• The words ‘during pleasure’ were, always understood to mean that the ‘pleasure’ should not continue when the Ministry had lost the confidence of the majority.
• the moment the Ministry lost the confidence of the majority, the Governor would use his ‘pleasure’ in dismissing it.

Conclusion

• During the deliberations in Constituent Assembly Debates,1949, H.V. Kamath asked if there was any guarantee against abuse of power by the Governor. The immediate reaction by P.S. Deshmukh, another prominent member was: “the guarantee is the Governor’s wisdom and the wisdom of the authority that will appoint the Governor”

Mains Question

Q. What is the role of Rajbhavans in the state government’s day to day business. Analyze the constitutional mandate of the governor’s pleasure and accountability of ministers.

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