Office of the Governor and Controversies

Probable Question

 Write a brief note on the origin, powers, and controversies over the office of the Governor.

Context

Recently, the prolonged silence of Jharkhand’s Governor over the Chief Minister’s possible disqualification as an MLA resulted in political uncertainty. Similar instances in multiple states have been the subject of debates over the role, power, and discretion of the Governor’s Office.

About The Post of Governor

• Pre-Independence India
  • In British India, provincial Governors were agents of the Crown, functioning under the supervision of the Governor-General, since 1858.
  • The Indian nationalist movement aiming for better governance came with the Government of India Act, 1935, which came into force in 1937, bringing provincial autonomy. 
  • With the 1935 law, the Governor was now to act in accordance with the advice of Ministers of a province’s legislature, but retained special responsibilities and discretionary power. 
• Post Independence India:
  • The Provisional Constitution of 1947 was adapted from the 1935 Act, retaining the post of Governor but omitted the phrases ‘in his discretion, ‘acting in his discretion, and ‘exercising his individual judgment’.
  • The post of the Governor was extensively debated in the Constituent Assembly, which too decided to retain it while re-orienting its role.
  • Under the parliamentary and cabinet systems of governance adopted by India, the Governor was envisaged to be the Constitutional Head of a State. 

Debated in the Constituent Assembly for Governor’s Post

• Dr. B.R. Ambedkar, referring to the Governor’s position as “ornamental”, called his powers “limited” and “nominal”. 
• He described the Governor’s role as: “The Governor under the Constitution has no functions which he can discharge by himself, he is required to follow the advice of his Ministry in all matters.”
• The two most important aspects of the Assembly debate were whether the Governor should be elected or nominated and whether he/she should be given certain discretionary powers.
• Concern about the “discretion” clause: 
  • Dr. Ambedkar contended, in response to these arguments, that vesting the Governor with certain discretionary powers was “in no sense contrary to or in no sense a negation of responsible government”. 
  • He said that the phrase “except in so far as he is by or under this Constitution” in Article 143 (now Article 163) meant that the discretion was a “very limited” clause.
• Doubts about Article 147 (now 167):
  • It empowers the Governor to ask the Chief Minister to furnish any information regarding administration of the affairs of the State and proposals for legislation.
  • Dr. Ambedkar said that if the Governor’s limited duties of advising and warning Ministers were also taken away, then he would be rendered a “completely unnecessary functionary”.

Constitutional Provisions About the Governor’s Role

• Article 154: Executive powers of the state shall be vested in the Governor 
• Article 155: Appointment of the governor by the President of India 
• Article 156: Term of office of governor; Shall hold office during the pleasure of the President.
• Article 157: Qualifications for the appointment Governor
  • He shall be Citizen of India 
  • Shall have completed age of 35 years 
• Article 158: conditions of the office of Governor 
• Article 160: Discharge of functions of the governor in certain contingencies
• Article 161: Pardoning powers of the Governor 
• Article 163: Council of Ministers to aid and advise governor
• Article 164: The Governor appoints the Chief Minister after an election and the Council of Ministers on the advice of the CM.
• Article 167: Duties of Chief Minister as respects the furnishing of information to Governor
• Article 174: The Governor can also summon, prorogue, and dissolve the Legislative Assembly on the advice of the Council of Ministers while they enjoy the confidence of the Assembly. 
• Article 200: Every Bill passed in an Assembly has to be sent to the Governor after which he has four options: 
  • To assent to the Bill, withhold assent, reserve the Bill for the consideration of the President,
  • Return the Bill to the legislature, asking it to reconsider the Bill or an aspect of it. 
  • The Governor can also suggest an amendment to the Bill. 
  • If the Governor chooses to pass the Bill in the same form again, “the Governor shall not withhold assent therefrom”.
• Article 239: Introduced through an amendment in 1956 for the role of lieutenant governor,  that each Union Territory will be administered by the President. 
• Article 239AA: 
  • A special provision for the National Capital Territory of Delhi, which was inserted in 1991. The lieutenant governor of Delhi also acts on the advice of the Council of Ministers except on the subjects of police, public order, and land. 
  • The Lt. Governor can exercise his discretion when required by any law. 
  • In case of a difference of opinion with the Ministers, he would have to consult the President.

The Supreme Court Interpreted the Role of the Governor

• In the S.R. Bommai case in 1994, the Supreme Court’s nine-judge Bench gave its historic verdict, ruling that: 
  • The Governor can summon, prorogue and dissolve the House only on the aid and advice of the Council of Ministers with the Chief Minister as the head.
  • The area for the exercise of his (Governor’s) discretion is limited.
  • Even in this limited area, his choice of action should not be arbitrary or fanciful. 
  • It must be a choice dictated by reason, actuated by good faith, and tempered by caution.
  • Imposition of President’s Rule shall be only in the event of a breakdown of constitutional machinery.
  • The floor of the Assembly should be the only forum that should test the majority of the government of the day, and not the subjective opinion of the Governor.
• In Shamsher Singh vs State of Punjab (1974), the Supreme Court said that the President and Governor 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”.

Commissions to Reform Center-State Relations

• The Sarkaria Commission, headed by Justice R. S. Sarkaria, said in its 1988 report:
  • It would not be desirable to appoint a Governor who is a member of the ruling party at the Centre, in a State where an Opposition party is governing. 
  • The Governor appointee should be a detached outsider and a person of eminence in some walks of life.
• In 2007, the M.M Punchhi Commission reported: 
  • Governors were expected to be independent, and to act in a manner devoid of any political consideration. 
  • It pointed out that independence of such actions would include keeping the State Legislature and the political executive shielded from the political will of the Union Government.

News Source: https://www.thehindu.com/news/national/federalism-the-office-of-the-governor-in-india/article65882166.ece?homepage=true 

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