Recently, when Tamil Nadu’s Governor, RN Ravi, walked out of the Assembly due to chaos created during Chief Minister, MK Stalin’s speech, the sacrosanct constitutional relationship between Governor and Chief Minister reached an all-time low. This isn’t something new. India has time and again witnessed such tussles and most recently in the form of Mamta Banerjee vs Jagdeep Dhankar, Pinari Vijayan vs Arif Mohammad Khan, Ashok Gehlot vs Kalraj Mishra, Arvind Kejriwal vs VK Saxena, and many more names. India has very occasionally witnessed a cooperative relationship between a centre-appointed governor and an opposition-ruled state’s chief minister. The situation is no doubt condemnable and a disgrace to federalism in India.
CONSTITUTIONAL POSITION OF GOVERNOR
But what is the real cause of these perennial disputes? Art. 153 provides for a mandatory post of Governor for the exercise of executive power of the state [Art. 154(1)]. In Hargovind Pant vs. Raghukul Tilak (Dr.), a Constitution Bench reiterated:
“The Governor is constitutionally the head of the State in whom is vested the executive power of the State and without whose assent there can be no legislation in exercise of the legislative power of the State.”
In B.P. Singhal vs Union of India, another Constitution Bench held:
“A Governor has a dual role. The first is that of a constitutional Head of the State, bound by the advice of his Council of Ministers [Art. 163(1)] The second is to function as a vital link between the Union Government and the State Government [Art. 155].”
IMPORTANCE OF GOVERNOR
The office of governor was introduced at State as an analogy to that of the President at the Centre. It was also provided to maintain the integrity and unity of the Union against the seceding tendencies among several states during independence. The post also strengthens the constitutional machinery of the state by acting as its watchdog through articles like 356, 200, 201, etc. The Hypocrisy or the contradiction is evident from the very fact that the governor takes the oath to preserve, protect and defend the Constitution [Art. 159] and not to serve the Union Government but still the reality is just the opposite.
CAUSE OF TUSSLE
The very root of the dispute lies in the Constitution itself. Art. 155 provides for the appointment of the Governor by the President and Art. 156(1), overriding Art. 156(3), confines the governor within the cage of the pleasure of the President. This appointment is indirectly made by the Council of Ministers headed by the Prime Minister [Art.74(1)] and the office depends upon their pleasure. This makes Governor a tool of the Central Government by which it can interfere with the government of opposition-ruled states.
Time and again this is illustrated by incidents like the Kerela’s Governor, in 2022, withholding his assent to the University Laws (Amendment) Act, 2022, and Kerala Lok Ayukta (Amendment) Act, 2022 because the Central Government opposed them or recently Tamil Nadu’s governor skipping the state government’s portion in his new year session address though bound to read. The tilt of the Governor is mostly towards Art. 155 against Arts. 163 and 154.
SAFEGUARDS AGAINST TUSSLE
Complete abolishment of the post of Governor is not feasible, the post is a must to ensure government in accordance with the constitutional provisions in the state as well as the unity and integrity of the Union. He is a constitutional watchdog as held by the State of Karnataka v. union of India and BP Singhal.
SAFEGUARDS FOR APPOINTMENT
Introducing an elected governor is not a solution. This will create a superiority conflict between two elected representatives viz. Governor and Chief Minister. A feasible solution is an appointment coupled with reforms suggested by the recommendation of Sarkaria, Punchi and the NCWRC commission that the concerned State’s Chief Minister must be consulted before the appointment besides the Vice President, Home Minister, and Speaker of Lok Sabha.
SAFEGUARDS FOR ELIGIBILITY
The incumbent, as suggested by Pt. Nehru, must be politically detached with minimal or no political affiliations. Pt. Nehru said that it would be infinitely better if the governor was not so intimately connected with the local politics of the province and must be acceptable to the government of the province. Moreover, Shashi Tharoor suggests that he must be made ineligible for future appointments as an office bearer of any political party.
SUGGESTIONS IN THE EXERCISE OF LEGISLATIVE POWERS
The recent controversy of Rajasthan’s Governor refusing to summon the assembly session even though he is bound to do so on the advice of the Council of Ministers [Art. 163(1)] is an example of the Central Government’s interference with the governance of the State. Surprisingly, all this is happening even after the Supreme Court’s ruling in Nabam Rabia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly. It held that the power to summon the House is not solely vested in the Governor and should be exercised with the aid and advice of the Council of Ministers and not on his own. Governor is not an elected nominee and such a nominee, cannot have an overriding authority, over the representatives of the people, who constitute the House or Houses of the State Legislature (on being duly elected from their respective constituencies) and/or even the executive Government functioning under the Council of Ministers with the Chief Minister as the head.
SAFEGUARDS FOR REMOVAL
In the same case, another means of such abuse was dealt with. Dismissal and replacement of Governors by the central government after general Lok Sabha elections is another practice of such abuse and interference. Council of Ministers use to appoint through the president their agent cum governor in opposition states to obstruct the government. The Court restricted such exercise in an arbitrary, capricious, or unreasonable manner by holding:
“A Governor cannot be removed on the ground that he is out of sync with the policies and ideologies of the Union Government or the party in power at the Centre. Nor can he be removed on the ground that the Union Government has lost confidence in him. It follows therefore that change in government at Centre is not a ground for removal of Governors holding office to make way for others favoured by the new government.”
SAFEGUARDS IN THE EXERCISE OF ART. 356
The controversy associated with the misuse of Art. 356, a “dead letter” according to B.R. Ambedkar, is nowhere hidden. Whenever the Union Government wishes to dissolve the opposition government at the state, it pollutes the chastity of Art. 356 and so the judiciary had to guard against its misuse by its guidelines under S.R. Bommai v. Union of India.
The framers of the Constitution had envisaged the interrelationship between Governor and Chief Minister as a utopian epitome of cooperative federalism and this is reflected in articles 163, 166, 167, 154, etc. Primarily to strengthen the constitutional scheme of federalism and states’ autonomy in their spheres, it furnished the office of Governor to preserve, protect and defend the constitution [Art.159] and preserving it means acting as the constitutional head of the state and not as an agent of Union Government. To effectively deal with unexpected contingencies, the Constitution also gives certain discretionary powers to the Governor like under Art. 356 or Art. 200. It has to be exercised by Governor’s own intellect and not as a weapon. The Indian political system including Governors must now understand what was iterated by the Supreme Court in B.P. Singhal.
“Governor is the Constitutional Head of the State. He is not an employee or an agent of the Union Government nor a part of any political team. He is above politics and a Governor cannot be removed on the ground that he is not sync or refuses to act as an agent of the party in power at the Centre.”
The aforementioned safeguards must be followed in their true essence to avoid these conflicts that undermine the idea of Federalism. The Governors must allow faithfully devote their integrity to the Constitution as per their oath and apoliticise themselves as suggested by Rajamannar Committee (1971):
“Governor of the state should not consider himself as an agent of the centre but play his role as the constitutional head of the State”
In the end, the ruling of the Constitution Bench in Hargovind Pant vs. Raghukul Tilak (Dr.) very aptly summarises the constitutional answer to the conflict:
“The Governor is the head of the State and holds a high constitutional office which carries with it important constitutional functions and duties and he cannot, therefore, even by stretching the language to a breaking point, be regarded as an employee or servant of the Government of India. He is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carries out his functions and duties. He is an independent constitutional office which is not subject to the control of the Government of India. He is constitutionally the head of the State in whom is vested the executive power of the State.”
Author(s) Name: Abhishek Gupta (Banaras Hindu University, Varanasi)