Governor vs Government

Governor vs Government

News: The role, duty and involvement of Office of Governor is constantly in news. In this article, we will discuss about recent controversies seen in states of Kerala, Tamil Nadu and West Bengal and broadly discuss about role of Governor, important Supreme court judgements pertaining to his role and way forward.

Background:
 Tamil Nadu – The ugly scenes in the Tamil Nadu Assembly with Governor R N Ravi deleting and adding words in his speech, his walkout, and the pandemonium in the House have once again brought to the fore the uneasy relationship and confrontationist course between the head of state and the executive.
 Kerala - Kerala’s Governor sought the resignation of 9 Vice-chancellors following a Supreme Court judgement setting aside the appointment of the Vice-Chancellor of a technology university. The Governor had also said that the statements of individual ministers that lower the dignity of the office of the Governor, can invite action including ‘withdrawal of pleasure’.
 West Bengal – Right from public spat between CM and Governor to the CM blocking the Governor on social media. The conflict between the Governor and state government here has seen different dynamics evolve.

What are the reasons for controversies associated with Office of Governor?
 Appointment and Removal - The Governor is appointed by the President and holds the Office during the pleasure of the President. There are no specified qualifications for appointing a person as the Governor (apart from being a Citizen of India and being above 35 years of age). The President appoints and removes the Governor based on the recommendations of the Union Government. Thus the Governor tends to act according to the liking of the Union Government.
 Political factors – The conflict is more common when different political parties are in power at the Union and State level.
 Discretionary Powers of Governor - According to Article 163, there is a Council of Ministers to aid and advise the Governor to exercise her functions. However, the Constitution provides certain discretionary powers to the Governor, where she can act without the advice of the Council. For example, I) The Governor can reserve a Bill passed by the State Legislative Assembly for the consideration of the President of India, II) exercising her power under Article 356 to recommend President’s Rule in the State, III) The Governor can appoint Chief Minister when no political party has a clear majority etc. Such discretionary powers lead to conflict and controversy between state government and Governor.

Important Supreme Court Judgements regarding Office of Governor:
 Shamsher Singh vs State of Punjab (1974) - In this case, a seven-judge Constitution Bench of the Supreme Court said that the President and Governor, custodians of all executive and other powers under various Articles, shall exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations.
 SR Bommai vs. Union of India (1994) – It was concerned with the use of Article 356 and the Governor’s power to dismiss a State Government. The Supreme Court ruled that whether the State Government has the majority should be tested on the floor of the House. It shouldn’t be based on the subjective assessment of the Governor.
 Nabia Rebia vs Deputy Speaker (2016) - The Governor had gone against the advice of the State Cabinet and called the session of the Legislative Assembly at an earlier date. The SC confirmed that the Governor does not enjoy broad discretionary powers and is always subject to Constitutional standards. The Court concluded that the Governor’s discretion did not extend to the powers conferred under Article 174. Hence, he could not summon the House, determine its legislative agenda or address the legislative assembly without consultation. (Article 174 is related to the Sessions of the State Legislature, prorogation and dissolution).

Key recommendations of Bodies/Commissions regarding Governor’s office:
 Administrative Reforms Commission (1969) – It recommended non-partisan persons having experience in public administration should be appointed as the Governors of State.
 National Commission to Review the Working of the Constitution (NCRWC) - The Governor should be appointed by a Committee comprising the Prime Minister, Home Minister, Speaker of the Lok Sabha, and the Chief Minister of the State concerned.
 The Second Administrative Reforms Commission (ARC) - The Inter-State Council needs to come up with some guidelines for governors to follow when they are using their discretionary power.
 Punchi Commission (2010) – I) It proposed a fixed 5-year term for Governors and advocated for using Impeachment process (similar to President) by state legislature. II) It reiterated certain provisions as recommended by Sarkaria Commission. III) The convention of making Governors as Chancellor of universities should be done away with.
 Below are recommendations made by Sarkaria Commission: 
 

Sarkaria Commission (1988)
o Governor to be appointed after consultation with CM
o Person should be detached figure without intense political links
o Use of Article 356 very sparingly and as matter of last resort
o The person should not be member of ruling party

Way Forward:
 Various Commissions have suggested practical reforms that need to be implemented in letter and spirit especially those concerning the appointment and removal of Governors.
 The Governor’s discretion and Constitutional mandate should be guided by certain ‘norms and principles’, which can be defined in a ‘Code of Conduct’. Discretion must be a decision that is guided by reason and motivated by good faith.
 Lastly, the Governors should also act in the best interests of the State as well as the Union. The terms used in reference to Governor’s office ‘Agent of Central Government’ does not augur well with a democracy as Vibrant as India’s.