Syllabus – GS 2 – Separation of Powers between various organs Dispute Redressal Mechanisms and Institutions, Appointment to various Constitutional Posts, Powers, Functions and Responsibilities of various Constitutional Bodies.
Context: The recent actions of two Indian states approaching the Supreme Court to challenge the conduct of their Governors underscore the persistent issue of political appointees in Raj Bhavan using their authority to obstruct the decisions of elected governments.
Source: The Hindu | Editorial dated 04 November 2023
Application: where to apply?
When asked about
– Office of the Governor
– Center-State Relations|
– Relevance of the office of the Governor
-Discretionary powers of the Governor
The Governor in a Historical Context
- Beginning in 1858, during the era of British Crown rule, provincial Governors functioned as agents of the Crown, operating under the oversight of the Governor-General.
- Over the course of subsequent decades, the Indian nationalist movement actively pushed for reforms to improve governance under British rule, leading to the Government of India Act, 1935, which introduced provincial autonomy in 1937.
- Following the implementation of the 1935 Act, the Indian National Congress secured a majority in six provinces, signifying a shift in the political landscape.
- The 1935 legislation mandated that Governors act in accordance with the advice of a province’s legislative Ministers while still retaining specific responsibilities and discretionary powers.
- Post-Independence and the adaptation of the Provisional Constitution in 1947, which was derived from the 1935 Act, the post of Governor was preserved. However, phrases such as “in his discretion” and “exercising his individual judgment” were omitted.
- The role of the Governor underwent thorough examination and discussion within the Constituent Assembly, resulting in its retention and a redefined purpose that departed from its British-era context.
- Within the framework of India’s parliamentary and cabinet systems of governance, the Governor was reimagined as the Constitutional Head of a State, marking a substantial evolution in the Governor’s role and function within the Indian political landscape.
Key Aspects Debated in the Constituent Assembly
- Dr. B.R. Ambedkar characterized the Governor’s position as “ornamental” and emphasized that the Governor had limited and nominal powers.
- According to the new Constitution, the Governor was required to follow the advice of their Ministry in all matters.
- The two primary aspects of debate:
- Whether the Governor should be elected or nominated?
- Whether they should possess discretionary powers?
- Concerns were raised about the impartiality of a nominated Governor, with apprehensions about their cooperation with the elected State Government.
- Jawaharlal Nehru supported the idea of a nominated Governor, arguing that an elected Governor might fuel separatist tendencies and that a nominated Governor could remain detached from party politics.
- The “discretion” clause in Article 143 (now Article 163) was a subject of concern for multiple Assembly members, with questions about the extent of the Governor’s discretionary powers.
- Dr. Ambedkar defended the discretionary powers as limited and not in contradiction to responsible government principles.
- Some expressed concerns about potential interference, but Dr. Ambedkar clarified that the Governor couldn’t overrule the Ministry and that these powers were essential for the Governor’s role.
Constitutional Position
- Head of State: The Governor holds the position of the state’s chief executive officer, Head of State and acts as a representative of the union government.
- Appointment: According to Article 165 of the Indian Constitution, the President of India is empowered to appoint the Governor of a state through a warrant under their hand and seal, for a five-year term.
- Executive Power: The Governor possesses executive authority over the state, and all executive actions are carried out in their name.
- Aid and Advice: A Council of Ministers, led by the Chief Minister, is established to aid and advise the Governor in fulfilling their duties, except when discretion is required as per the Constitution (Article 163).
- Appointment of Chief Minister and Cabinet: The Governor holds the authority to appoint the Chief Minister and other cabinet members, who serve at the Governor’s pleasure.
Does the Governor have any Discretionary Powers over State Legislation?
- The Governor’s discretionary powers include the ability to:
- Grant assentto the bill, thereby making it a law.
- Withhold assent, causing the bill to not become a law.
- Refer the bill back to the House of Representatives for reconsideration, and if it’s passed again with or without amendments, the Governor must approve it, essentially having suspensive veto power.
- Reserve a bill passed by the state legislative assembly for the President’s assent [Article 200].
Current Developments in the States
- Tamil Nadu and Kerala express concerns about delays in assenting to Bills passed by their legislatures.
- Both states approach the Supreme Court of India to address the conduct of their Governors.
- Tamil Nadu expresses distress over unresolved issues, including convicts’ remission, prosecution of former Ministers, and appointments to State Public Service Commissions.
- Some Governors resist proposed amendments to university laws, particularly those seeking to remove Chancellors, who are often Governors themselves, from the vice-chancellor appointment process.
- Recently, several State Governments, such as West Bengal and Maharashtra, have frequently voiced their dissatisfaction with Governors’ interference in day-to-day administration.
The governor’s authority to exercise discretionary powers and withhold assent to a Bill.
- Article 200 implies that the Governor can withhold their assent, but there are concerns about whether this action can be taken solely based on the advice of the Council of Ministers.
- The Constitution specifies that the Governor can exercise executive powers only upon the advice of the Council of Ministers (Article 154).
What’s the Supreme Court’s Stance?
- The Supreme Court underscored that the Governor’s discretion is constrained.
- Within this limited scope, the Governor’s decisions should be rational, rooted in good faith, and marked by prudence.
- In the case ofShamsher Singh vs State of Punjab (1974), the Supreme Court established that:
- The President and Governor should exercise their formal constitutional powers solely based on the guidance of their Ministers, except in well-recognized exceptional circumstances.
- This practice is the norm, with only a few well-known exceptions justifying independent action.
- In the B.P. Singhal vs. Union of India case (2010), the Supreme Court made the following key observations:
- The Governor is not an employee or agent of the Union Government
- Expected to be apolitical.
- They are tasked with discharging strictly constitutional functions, regardless of their prior political affiliations.
- Required to refrain from political involvement. Even if they have a political background, their appointment as Governors necessitates their allegiance and loyalty to the Constitution, not any political party.
- Rajiv Gandhi assassination case:
- The Supreme Court, invoking its extraordinary powers under Article 142, ordered the release of A.G. Perarivalan in the Rajiv Gandhi assassination case.
- The Court determined that the advice provided by the Tamil Nadu Council of Ministers on September 9, 2018, to pardon Perarivalan, was binding on the Governor according to Article 161 of the Constitution.
- The Court emphasized that the prolonged delay and the Governor’s reluctance to address the pardon request compelled the Court to utilize its constitutional authority under Article 142 to ensure justice for Perarivalan.
Insights from Government Commissions
- Government-appointed commissions have examined and proposed reforms in Centre-State relations, focusing on addressing issues regarding the Governor’s role.
- The Sarkaria Commission: chaired by Justice R. S. Sarkaria in 1988, recommended that Governors should not be members of the ruling party at the Centre when an Opposition party governs a state. Instead, they should be impartial individuals of distinction.
- M.M. Punchhi Commission: In 2007, emphasized that Governors should maintain independence and act without any political considerations. This independence was seen as essential to insulate the State Legislature and the political executive from the influence of the Union Government.
Challenges
- Administrative Delays: The Governor’s inability to make timely decisions on passed Bills results in administrative delays, affecting state government operations.
- Policy Deadlocks: When the Governor hesitates to endorse Bills, it hinders the implementation of policies and laws, particularly those related to public welfare.
- Inefficiency in Administration: Pending Bills with the Governor can be seen as signs of inefficiency or corruption, tarnishing the state government’s image.
- Confusion and Controversies: Ambiguity within the Constitution regarding the Governor’s authority to withhold assent, especially in cases involving advice from the Council of Ministers.
- Constitutional Crisis: Governors withholding bills can result in a constitutional crisis and deadlock, necessitating Supreme Court intervention to resolve the impasse.
- Transparency and Accountability: When the Governor withholds assent, reasons for the decision are not provided, raising concerns about transparency and governance accountability.
What is the Way Forward?
- Establishing a Timeframe for Assent: The Supreme Court or A Parliamentary amendment to the Constitution could establish a reasonable time limit for Governors to make decisions on passed Bills, promoting federalism and preventing unwarranted delays in state governance.
- Guiding Principles from Punchhi and Sarkaria Commissions: The recommendations of the Punchhi and Sarkaria Commissions should be taken into account as guiding principles for the appointment and conduct of Governors.
- Supreme Court Rulings as Directives: Various Supreme Court judgments should serve as directives for both the Union and state governments in managing the Governor’s office.
- Apolitical Governor’s Role: The Governor’s role must remain apolitical, emphasizing impartiality.
- Appointment through a Collegium: A selection process involving a collegium comprising the Chief Minister, opposition, and the judiciary should be established for appointing Governors.
- Constitutional Amendments for Curbing Discretionary Powers: Constitutional amendments should be considered for relevant articles to limit the discretionary powers of the Governor.
- Governor’s Adherence to the Doctrine of Neutrality: Governors should diligently adhere to the “Doctrine of Neutrality” and act as patrons of the state, rather than being perceived as agents of the Union.
- Promoting Dialogue Between the Stakeholders: A constructive dialogue between the Centre and States is essential to address this matter and ensure adherence to constitutional provisions.