By Ananya Tyagi, Advocate.
Governor is a constitutional post by the virtue of Article 153 of the Indian Constitution. The Governor and his functioning has been constantly in news with the floor test called by the Governor in Maharashtra, being debated as illegal before the Constitutional bench of the Supreme Court. Floor test is a tool to adjudge if the Chief Minister (i.e. government) still enjoys the confidence of the Assembly and hence the people in the representative capacity. The Chief Minister is called to prove his majority in the house, amongst those present and voting. In case the CM fails to establish his majority in voting, it leads to his resignation along with the council of ministers that sinks with it.
The Supreme Court held the act of the Governor of Maharashtra calling for the floor test (for the former CM to prove his majority), as unjustified. In the earlier years after independence, primarily when only one party was in a stable majority both in centre and states, the post never caught peculiar eyes. However, with Indian democracy evolving into a harbinger of multi party system, the constitutional head of the state assumed a peculiar position as a link between the centre & state on one hand and as de jure head of state on the other hand, responsible for an effective federal balance. Another element in news was the recent appointment of the 6 new Governors of the States in February and the transfer of 7 others, making a total of 13. Lt. Gen. Kaiwalya Trivikram Parnaik, Lakshman Prasad Acharya, C P Radhakrishnan, Shiv Pratap Shukla, Gulab Chand Kataria, S. Abdul Nazeer (Former Justice of Supreme Court) were the 5 new appointees.
Governor for the State
As per the constitutional mandate, there shall be a governor appointed by the President for every State. Article 153 by 7th amendment provided for the provision of appointment of the same Governor for 2 or more states as such. The executive power of the State, vests in the Governor and is duly exercised by him as per the constitution and the executive actions are as such taken under his name. The Constituent Assembly while framing the constitution, considered the tangents involved in either electing or nominating the Governor. There were tedious concerns that if the Governor is brought in as an elected figure backed by majoritarian mandate, he might project separatist tendencies and work on the behest of concerned political party or ideology in a tussle of power, instead of acting as a link and representative between the centre and the state.
- He shall be a citizen of India.
- Minimum age of 35 years
- Governor shall not be a member of either house of parliament or state legislature. In cases where a new appointee is already a member of such a house, then he shall be deemed to have vacated that seat.
- He should not hold an office of profit.
- Reserving a bill for the President's consideration.
- Recommending/ Report for President’s rule in the State.
- Acting as Administrator of Union Territories (when accorded an additional charge as an administrator).
- Calling for information from the Chief Minister, regarding the executive and legislative affairs, whereby the CM is also under a constitutional obligation to convey all the decisions of council by the mandate of Article 167.
- Governors may ask for submitting for the consideration of the Council, any matter on which a decision has been taken by an individual minister but the matter has not been considered by the council. This objectively fulfils the idea of collective decision and collective responsibility.
- Assent to the bills passed by the legislature or withholding the same.
- Calling party to prove the majority in the house.
- Governor’s report under Article 356 i.e. the need for ‘State Emergency’ owing to failure of constitutional machinery.
The Apolitical Appointment
Constitution provides for basic qualifications for appointment of a person as a Governor-
The Governor, like the President, is not supposed to be the member of either house of the Parliament or the legislative assembly or hold an office of profit. To prevent friction and undue influence, the constitution expressly prohibits reducing the emoluments and allowances during his term of office. The elementary idea behind these qualifications was to maintain the neutrality and balanced stance of the Governor, who acts as the bridge between the Central and the State government. The Governor generally acts on the aid and advice of the State’s council of ministers. However, the Governor is vested with some discretionary powers as well. Though there is no exhaustive list of such acts, the Governor is supposed to act with his reasoned discretion ( i.e. without the aid and advice of the council of ministers) in discharge of certain official functions by or under the constitution. Hence, there may be instances where such an exercise of discretion is necessarily implied for purposive fulfillment of constitutional duties. Consider a case of giving sanction for prosecution of Chief Minister, to meet the objective behind seeking sanction and for a judicious consideration of the question, it necessarily follows that Council headed by the Chief Minister himself cannot have the deciding hand over the issue and hence in cases like these there is an impetus for the Governor to act in discretion, by an imperative implication that can be purposefully deduced. The decision over the question of existence of discretion on a certain matter in this concern, rests with the Governor himself and is final. This can be inferred by the constitutional provision that creates an embargo on questioning the validity of any act of governor, on account of the fact that he should or should not have exercised his discretion over the act. Extending the same purpose, Article 163 prohibits the court to inquire ‘if any’ and ‘what’ advice was tendered by the council to the Governor and, hence covers both the instances of discretionary and no discretionary acts.
The Political Loop
Against the intended notion of the Governor being apolitical and a neutral head, the Governor is often seen and criticised as acting on account of the Central government instead. This often leads to struggle and ruckus between the Central government and the State government (ruled by the opposition parties). The conflict is driven by the fact that Article 156 (3) is controlled by Article 156(1) i.e. ordinarily the Governor holds his office for five years but he remains in the office as per the pleasure of the President, as per Article 156 of the Constitution. Unlike impeachment in the case of the President, there is no specific process or ground for removal of the Governor. Back in 1989, when V.P. Singh’s government came to power, the President sought the resignations of all Governors (owing to their appointment by the previous government). The President by rule ordinarily acts on aid and advice of the Council of ministers and hence the ruling party and that in turn becomes the driving force of the Governor, who stays in the office as per President’s discretion without any specific process or grounds of removal or impeachment. This definitely has its fair chance of affecting the efficacious objective and impartial working of a Governor.
Adding to the glitch, there is no specific provision in the Constitution to deal with or resolve the conflict of opinion between the Governor and the State Government in power. Along with that the appointees are often chosen for and driven by certain political ideologies and political ambitions, that add to the facts of criticism. What remains in hand to uphold the original intent, is to respect the mutual working boundaries and act with neutrality and true official capacity, notwithstanding individual ideologies. Even appointments should be made consciously, to break these alleged loopholes of the power play.
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