Introduction

Recently the scuffle between two power centers – the state government which is run by a political party elected through the people’s mandate and the Governor, who is nominated by the President, is rocking the country. The last of mutual conflicts went to such an extent that some states are planning to come together to form a united force against the governors. The allegations are many. From the state government of Rajasthan, Kerala and Maharashtra claiming that their governors have refused to hold the assembly sessions are per the recommendation of the Cabinet to the Chief Minister of West Bengal blocking the Governor on Twitter, fire balls are being thrown from all sides casting serious shadow on the principles of federal structure. The constitution is being interpreted in various ways to suit the interests and agendas, which if continues unabated will destroy the Centre-State relation and the beautiful fabric of the constitution.  

Legal Aspect

The Constitution of India derives the majority of its provisions from the Government of India Act 1935. As a result of this Act, Governors were appointed “by the Raj, of the Raj, and for the Raj.” The members of the Constituent Assembly were suggested by B.G. Kher, K.N. Katju, and P. Subbarayan of the subcommittee. As a result of the conflict between the Governor’s and Chief Minister’s authority, the system of appointed Governors of the state was established.

The Governor is the State’s chief executive head, however he has only nominal or titular authority, similar to the President of India. On the other hand, the Governor serves as the agent of the Central Government, implying that his position has a dual purpose.

As the titular head of state, the Governor lacks the authority to exert real power. The Chief Minister and the Council of Ministers exercise true authority. While analyzing his constitutional situation, specific reference must be made to Articles 154, 163 (discretionary power) and 164 of the Constitution of India.

Article 256 specifies that each state’s executive powers shall be exercised in accordance with the legislation passed by Parliament and that the Union may utilise its executive authority to instruct the State when the Government deems it necessary for a particular purpose.

Article 257 (1) and (2) make it clear that states’ executive powers should be exercised without impeding the exercise of the Union’s executive powers. It also includes directives to a State about the building and maintenance of means of communication determined to be of national or military importance in the direction.

Article 355 “charges the Union government with the responsibility of defending the States from external invasion and internal strife and ensuring that each State’s government operates in accordance with the Constitution’s provisions.”

Article 356 provides that if the State Government is unable to function in accordance with the Constitution’s provisions, the Union Government has the authority to take direct control of the State Machinery. After obtaining the President of India’s permission, the Governor of the state may proclaim.

While the constitution emphasises the Governor’s ability to act at his discretion, no comparable provision is established for the President. Additionally, while the President is bound by ministerial advice pursuant to the 42nd Constitutional Amendment Act 1976, the Governor is not. The Governor’s judgement is definitive; if any doubt exists, the subject is either within the Governor’s discretion or not. Thus, while he possesses constitutional discretion, his actions must conform to the Union government’s directives.

In Rajasthan (2020), critical problems have arisen over the Governor’s powers and functions in relation to the State’s Elected Government and Legislature. It was the first time the Governor, despite being directed by the state cabinet to convene the assembly, delayed convening it in order to raise questions and seek clarifications on the house’s agenda. It is worth noting that the elected alone have the authority to determine the proposed session’s date, even though the Governor is obligated to sign the order.

In 1974, in Shamsher Singh v. State of Punjab(1), a seven-judge Constitutional panel of the Supreme Court stated, “The Governor has no authority to disregard the Council of Ministers’ advice.” This is an opposite view-point to the notion of responsible government.” This statement clarifies the Governor’s position.

In S.R. Bommai v. Union of India(2), the Supreme Court declared that the Assembly should be the exclusive arena for testing the majority of the Government, not the Governor’s view, who is referred to as the Central Government’s agent. This occurred when Karnataka’s then Governor P. Venkatasubbaiah refused to allow Bommai (then Chief Minister of Karnataka 1989) to test his majority in the Assembly after obtaining a copy of the Janata Dal Assembly resolution. Bommai then appealed to the Karnataka High Court against the Governor’s recommendation of President’s Rule, which the High Court denied.

The Administrative Reforms Commission (1968) emphasised the need of not appointing the Governor based on political connection, which would jeopardise his post. Additionally, it proposed that the Governor’s report on the President’s regulation be subjective.

Additionally, the Sarkaria Commission (1988) stressed the character of the Governors to be nominated. It stated, “Four requirements for appointment as Governor include that the individual should be ‘great in some field of endeavor, should come from outside the State, and should be aloof and not overly involved in state politics.”

The Rajamannar Committee (1971) suggested that India’s constitution be amended to delete Articles 356 and 357. The required protections against the ruling party’s arbitrary conduct at the Centre under Article 356 should be written into the constitution.

The Rajamannar Committee emphasised that the state governor should not view himself as an instrument of the central government but rather as the constitutional leader of the state.

Additionally, in Rameshwar Prasad & Ors v. Union of India & Anr(3), the court noted that – “The language needed in Article 163(1) is stated to mean that the Governor may employ his discretionary powers only where a compelling requirement exists.” The obligation to utilise such powers may emerge either expressly or by necessary implication from the Constitution.”

On 5 January 2016, in Nebam Rebia and Others against Deputy Speaker and Others(4), the Guwahati High Court concluded that “the Governor cannot create any business for the House to conduct, whether through a phoney message or otherwise.” If the Governor disregards the Council of Ministers’ recommendation to convene the House, due sanctions will ensue.

There has been much dispute concerning the governor’s powers and tasks in recent years. Several examples include Goa (2017), Meghalaya (2018), Manipur (2017), and Karnataka (2017).

Karnataka was recently in the news (2021) for a similar situation, when the Union government directed Karnataka Governor Vajubhai Vala to convene an all-party virtual conference. He is required by law to abstain from any party-related activity, and the decision to convene a meeting is solely up to the Chief Minister.

Conclusion

To ensure the Governors’ office functions successfully and maintains institutional credibility, the Governors’ nomination procedure should be revised, involving state governments as well.

A Constitutional Amendment is required that incorporates both political and legal agreement about the appointment, powers, and functions of Governors who may operate as custodians of constitutional government. He/she should not be identified with any particular political party or philosophy and should not function only at the direction of the Union Government.

He should be unbiased and exercise his judgement when carrying out his duties as Governor. A Governor plays a critical role in the effective running of a Constitutional Democracy. Thus, a well-defined system for his nomination, his powers and responsibilities, and his authority to operate independently of the Central Government should be established.

At the same time, the elected state governments must not view all the remarks made by the governors with suspicion. They should not make the Raj Bhawan the centre of their political power struggle. Politically coloured elicits, remarks and criticism diminish the stature of the Governor’s office.

The Governor is a constitutionally significant figure. He must operate within the confines of the Constitution and serve as a confidant, philosopher, and guide to his government.

References

• (1) – (1974) 2 SCC 831
• (2) –  AIR 1994 SC 1918
• (3) – (2006) 2 S.C.C. 1
• (4) – 2016 SCC OnLine SC 694

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