The Governor and the Inherent Conflict in his role

With great power, comes great responsibility…

By Aditya Bhardwaj, (Batch of ’22), Government Law College, Mumbai


INTRODUCTION

The office of the Governor constitutes one of the most controversial aspects of the Indian Constitution. The provisions related to the powers of a Governor have not only generated a great deal of discussion and controversy today but were also part of heated discussions in the Constituent Assembly.[1]The Governors are, in effect, appointed by the Central Government of the day and are not elected by the people, directly or indirectly. Thus, their actions may be and have been questioned for want of popular legitimacy. An understanding of certain controversies relating to the Governor’s powers under the Indian Constitution reveals the inherent conflict that exists between his role as the head of the State Government and his role as the regent of the Central Government.


ORIGINS

The origins of this office may be traced to the British system of deputing a Governor-General, as representative of the Queen’s Government (i.e. the British Government), to oversee the affairs of a particular commonwealth realm. Today, countries like Australia, Canada and New Zealand retain a modified system of governance where a Governor-General performs ceremonial functions of being the monarch’s representative. However, he is appointed by the Monarch upon the advice of the respective government.


The provisions relating to the Governor of a State under the Indian Constitution have been inspired from the Canadian Constitution Act of 1867.[2] The provisions in the Indian Constitution are very similar in language to the provisions of the Canadian Constitution which relates to Lieutenant-Governors of different provinces.


BACKGROUND

Chapter II of Part VI of the Constitution deals with the Executive of a State. Here, we see the first mention of the office “Governor” in Article 153[3] which provides that every State shall have a Governor.

The Governor of a State is appointed by the President on the aid and advice of the Central Government and holds office during the pleasure of the President.[4] The term of office of a Governor is five years.[5] Further qualifications and conditions of appointment are given in Article 157 and 158 respectively.[6] It may be noted that the Governor of a State is an office analogous to the office of the President of India with similar functions. They’re both nominal heads where the executive authority of their respective governments is vested. However, there are certain dissimilarities as well. Firstly, in contrast to the Governor of a State, the President is elected by the people indirectly by way of an electoral college.[7] Secondly, the Governor enjoys certain additional discretionary powers as opposed to the President who is bound, more or less, in all matters by the aid and advice of the Union Council of Ministers.[8]


THE CONTROVERSIES

  1. Reservation of bills for the consideration of the President

The Governor of a State, under Article 200 of the Constitution, possesses great discretionary power to reserve bills passed by a State Legislature for the consideration of the President.[9]The Sarkaria Commission, which was appointed to study the relations between the Centre and the States, notes that: though the Governors have generally been aided by their Council of Minister in reserving bills, controversies have been created in some instances where the Governor has exercised his discretion. As per the Commission’s Report, there are three kinds of bills that a State Legislature may pass. They are: (1) bills which must be [shall be] reserved for the President’s consideration, (2) bills which may be reserved for the President’s consideration and (3) bills which may not fall into either categories.[10]

Bills that must be reserved are:

  1. Those that derogate from the powers of the High Court, as to endanger the position of the High Court as designed by the Constitution.[11]

  2. Those which relate to imposition of taxes on water and electricity in certain cases and attract the provisions of Cl. (2) of Article 288.[12]

  3. Money bills or other bills, if such a direction is included in the proclamation during Financial Emergency under Article 360.[13]

Bills that may be reserved are:

  1. Bills that need to secure immunity from operation of Article 14 and Article 19 for either acquisition of estates, etc.[14] or giving effect to Directive Principles of State Policy.[15]

  2. Those relating to subjects enumerated in the Concurrent List, to ensure operation of its provisions despite their repugnancy to a Union law or an existing law.[16]

  3. Those bills imposing reasonable restrictions on the freedom of trade, commerce or intercourse with or within a State as may be required in public interest and which required Presidential sanction to be introduced in a State Legislature.[17]

Furthermore, there are bills that may not fall into either of these categories but which may yet be reserved by the Governor under Article 200. The Sarkaria Commission does not specify the bills that fall under this category.

Reserving a bill creates great delay in implementing the law as the President’s assent or conditional assent is awaited. Many a time due to policy differences of the Centre and the State, the Presidential assent is delayed, which essentially puts the bill in cold storage despite being passed by the State Legislature. Many states have criticised these provisions and have asked for changes in how these provisions are implemented.[18]

The Sarkaria Commission noted that rigid guidelines cannot be laid down to regulate the power of reserving bills. However, the Commission recommended that the Governor should act in his discretion and that bills should be reserved only in rare and exceptional circumstances, where he is compelled by ‘dictates of good conscience and his duty to uphold the constitution.[19]

Incidentally, such controversies were once common in Canada where the Lieutenant-Governor has similar powers under the Constitution Act of 1867.[20] However, the last time a bill was reserved by a Lieutenant-Governor of a province was in 1961.[21]


Appointment of State Governments

Under Article 164, it is the Governor who appoints the Chief Minister and the Council of Ministers. Usually, the choice for the post of Chief Minister is clear. However, as our political system has evolved, situations have arisen with the electorate returning a fractured mandate. In such times, the discretionary power of a Governor to appoint a Chief Minister who may then prove his support comes into the picture. Under these circumstances, allegations have flown around that the Governors misuse their discretionary powers to favour the party that appointed him i.e. the party in power at the Centre. Many incidents may be pointed out, even as recently as the 2018 Karnataka crisis where the Supreme Court, in Dr. G Parmeshwara v. Union of India[22] intervened decision and ordered an immediate floor test after the Karnataka Governor’s contentious decision to invite B.S. Yeddyurappa to form the Government.


Arbitrary Dismissal of State Governments

Questionable motives have also been alleged in cases where a Governor has exercised his powers under Article 356.[23] Under this provision, if the President is satisfied on receipt of a report from the Governor that the Government of a State cannot be carried out in accordance with the provisions of the constitution, the President’s rule may be imposed. There have been quite a few cases where Article 356 has misused for purely political reasons.[24] Such misuse of power led to the case of SR Bommai.[25]In this case a nine-judge bench of the Supreme Court laid down directions related to exercise of power under Article 356. The guidelines in this case has to a great extent reduced the practice of arbitrary dismissal of State governments by a hostile Central Government.


SR Bommai held that the President could not take irreversible action such as dissolving the legislature of a State unless such a proclamation has been approved by both Houses of the Parliament under Article 356(3).[26] Furthermore, this case laid down the principle of primacy of the floor test in determining if support exists for a State Government Ministry. Thus, the judgment, in essence, restricted the discretionary powers of the Governor and the President. The Judgment also firmly established the Supreme Court’s and High Court’s power of judicial review of decisions taken under Article 356 with the important caveat that satisfaction of the President based on relevant reasonable material is not open to question. However, if the material before the President cannot reasonably suggest that the Government of the State cannot be carried on in accordance with the provisions of the constitution, the proclamation is open to challenge.[27]


CONTEXTUALISING THE INHERENT CONFLICT

The Governor, unlike the President, is a regent of sorts from the Central Government to the State government. He is supposed to act as a check on the authority of the State Government. Thus, there is inherently a constitutional conflict in his role as the head of the executive authority of the State while being a regent of the Central government. This is also a remarkable example of how our quasi-federal constitution prioritises the Union’s authority over States’ authority as a fail-safe.

At the time of independence, India had suffered a painful partition and had a history of disunity.. The Republic of India was an experiment at creating a nation-state out of a diverse group of people who had very little in common, except maybe a common history of struggle. Many had suggested in our earlier years that India as a country will not survive. In this context, the suspicion that national leaders had of sub-national units triumphed. Hence, we see a system that has a State Governor whose position contains an inherent conflict between the two roles the Constitution envisages him to play.


While considering the above provisions, it is necessary to take into account that the constitution remains silent and gives discretion in many instances because the makers of our constitution realised that not all contingencies could be planned for and that people and their values change with time. It is upon us as a polity to ensure that the discretion given to constitutional functionaries is not abused so that the future generations do not lose trust in our democratic system.


CONCLUSION

Throughout these Seventy-Three years, we have endured as a Union with deeper integration of the peoples of this country. This integration, whatsoever may have caused it, warrants a rethink of how Governors exercise their powers. Several commissions have suggested regulation of the unfettered discretion enjoyed by the Governors.[28] They have remained as recommendations without legal backing as Parliament has not acted upon them for the sole reason that any regulation will impact the politics of the ruling party in the Centre.


A Governor is an important constitutional office that must not only be unbiased but must be seen as unbiased, and functioning beyond partisan politics for the health of our democracy. The Canadians still have the same provisions from 1867 that served as an inspiration to our Constituent Assembly for the role of the Governor. However, the interference by the Federal Government through the Lieutenant-Governor in provincial matters has declined over the years. In the same manner, with time, as our institutions mature and the public keeps an eye on their constitutional functionaries, the Indian quasi-federal structure too must adapt.

[Disclaimer- The views expressed in the article are personal views of the author]

Aditya Bhardwaj, Government Law College, Mumbai

[The author may be reached at adi.rbharadwaj@gmail.com]

[This blog is edited by Mr. Vivek Sharma|Managing Editor||Ms.Sawani Chothe|Content Administrator|| Mr. Rajmohan CV|Junior Editor||Adv. Advait Shukla|Senior Editor]



[1]http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C02061949.html; https://www.newindianexpress.com/states/tamil-nadu/2017/nov/19/what-the-constituent-assembly-debates-tell-us-about-governors-role-1705053.html

[2] The Constitution Act, 1867 (Originally passed by the UK Parliament as The British North America Act, 1867).

[3] The Constitution of India 1950, art 153.

[4] Ibid, art 155, 156(1).

[5] ibid, art 156 (3).

[6] The Constitution of India 1950, art 157, 158.

[7] Ibid, art 54.

[8] The Constitution of India 1950, art 53, 154.

[9] Ibid, art 200, 201.

[10] Report of the Sarkaria Commission, Ch. 5, Pg. 5. Para 5.1.05 http://interstatecouncil.nic.in/wp-content/uploads/2015/06/CHAPTERV.pdf. 

[11] The Constitution of India 1950, art 200.

[12] Ibid, art. 288, cl. 2.

[13] Ibid, art. 360, cl. 4(a)(ii).

[14] Ibid, art. 31A, cl. 1, first proviso.

[15] Ibid, art. 31C.

[16] Ibid, art. 254, cl. 2.

[17] Ibid, art. 304, cl b, proviso.

[18] http://interstatecouncil.nic.in/wp-content/uploads/2015/06/CHAPTERV.pdf

[19] Report of the Sarkaria Commission, Ch. 5, Pg. 23, Para 5.19.01 http://interstatecouncil.nic.in/wp-content/uploads/2015/06/CHAPTERV.pdf

[20] The Constitution Act 1867, s 55.

[21] https://www.assembly.ab.ca/lao/library/lt-gov/PDF/role.pdf

[22] W.P.(C) No.-000536 / 2018

[23] The Constitution of India 1950, art 356.

[24]K. Jayasudha Reddy and Joy V. Joseph, “EXECUTIVE DISCRETION AND ARTICLE 356 OF THE CONSTITUTION OF

INDIA: A Comparative Critique” pg. 18 https://www.ejcl.org/81/art81-4.PDF .

[25] S. R. Bommai v. Union of India, 1994 AIR SC 1918

[26] The Constitution of India 1950, art. 356 cl. 3.

[27] S. R. Bommai v. Union of India, 1994 AIR SC 1918

[28] https://www.prsindia.org/theprsblog/removal-governors-what-does-law-say

#Inherentconflictinpower #Article155 #powergovernor #chiefminister #Governor

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