Controversial Role of Governors

Context:

Recently, the West Bengal Chief Minister described the Governor of the state as the central government’s own person.

Probable Question:

1. The Governor has an important role that the mandates of the Constitution are respected in the State to play in. To undermine duly elected State governments, is a particularly mischievous disruption of federalism.

Governor:

● The Governor is the chief executive head of the state. He is analogous to the post of the Nominal Executive head as entitled to the President but with due exceptions. The Governor acts as a means of the central government. Hence, the office of Governor discharges dual roles.

● Article 154 vests the executive powers of the State in the Governor who exercises it either directly or through officers subordinate to him in accordance with the Constitution.

● Under Article 163, the Governor as the Constitutional Head exercises all powers under the Constitution on the aid and advice of the Council of Ministers. It includes summoning and proroguing the Session of the State Legislature, Promulgation of Ordinances, giving assent to the Bills and appointing the Council of Ministers.

● Discretionary powers of the Governor: The Governor has the following two categories of discretions: constitutional and situational discretion.

Constitutional Discretion of Governor:

The Governors of states might act at their Constitutional discretion in the following instances:

➢ Governors will decide on their own without consulting the Council of Ministers when they have to reserve a bill for the President's consideration.

➢ When he has to make recommendations for imposing the President’s rule, he acts at his own discretion.

➢ When he is given the additional responsibility of becoming the administrator of the Union Territory (UT), he is free to make his own decisions.

➢ When he decides the amount payable by the Government of Meghalaya, Assam, Mizoram and Tripura to the autonomous Tribal District Councils as royalty accruing from licenses for mineral exploration.

➢ When he requests information from the Chief Minister on legislative and administrative matters.

Situational Discretion of the Governor:

The Governors of states might act at their situational discretion in the following instances:

➢ In-appointment of the Chief Minister after no party has a clear majority in the election or when the incumbent dies in office.

➢ In the dismissal of the Council of Ministers when unable to prove confidence in the state legislative assembly.

➢ When he dissolves the state legislative assembly when it loses its majority.

Controversies Related to Governor’s Role:

● Ill-defined discretionary powers of the Governor: Most controversies are due to Misuse of discretionary power. These powers are ill-defined in the constitution. Often “discretion power” for choosing a Chief Minister or requiring a Chief Minister to prove his/her majority, or dismissing a Chief Minister, dissolving the legislature, recommending President’s Rule — came to be tainted with partisan political considerations.

● Misuse of Article 356: Under Article 356, Governor has discretionary power to submit a report to advise the President to proclaim an emergency if there is a constitutional breakdown.Often Article 356 is abused for removing state governments run by opposition parties.

● An agent of the centre: Governors are mostly seen as agents of the party in power at the Centre, using their discretionary powers to aid and abet the fall or formation of favourable governments, or locking horns with chief ministers from the opposition parties and hampering the functioning of the state.

● As an appointee of the Union Government and no security of tenure, the Governors have been prone to act on the instructions by the ruling party at the Centre.

● Commenting adversely on specific policies of the state government and exercising powers of the governor as the chancellor of state universities.

Recommendations:

● Consultation with States in appointment: The first Administrative Reforms Commission in 1969 said that while the appointment should remain the discretion of the Centre, chief ministers of respective states should be consulted.

● Special wing to be set up in the President’s secretariat to ascertain facts and circumstances relating to each situation requiring action by a governor.

● criteria for the selection of governors suggested by Sarkaria Commission—they should be eminent in some walk of life, be from outside the state, be neutral and not intimately connected with local politics, and be someone who has not taken too great a part in politics, particularly in the recent past. Most importantly, said that nominees of the ruling party should not be appointed and that the state chief minister should be consulted before a candidate is finalised.

● S.R. Bommai vs. the Union of India (1994)Case: It effectively cautioned against the frequent use of Article 356 for removing state governments run by opposition parties. This drastically reduced the incidence of President’s rule from 63 during 1971-1990 to 27 between 1991 and 2010 and this indeed has strengthened the federal structure to an extent.

➢ Discussing the scope of exercise of powers under Article 356 of the Constitution, the Supreme Court, in the Bommai judgment, had laid down limits of the President’s power in dismissing state governments and established that the floor of the House is the only place to conclusively test majority.

● The Supreme Court had said the Governor’s action should be to protect the Constitution and not to promote the political interests of any political party.

Way forward:

● A transparent procedure can be formulated for the selection of governors by way of a constitutional amendment or a statute enacted by Parliament and a fixed tenure like that of other constitutional bodies such as the CAG, CEC or CVC.

● In light of the spate of controversies around governors, it is time to rethink and reform the constitutional position. If it continues to be an extension of the central government, there is also a need to debate the necessity of the post.