Context

• The role of the Governor, which originates in the colonial period, has been a contentious one, right from the Constitutional Assembly debates to the Supreme Court cases around it.

• Recently, the prolonged silence of Jharkhand’s Governor over Chief Minister Hemant Soren’s possible disqualification as an MLA resulted in political uncertainty.

How did the post of Governor come about?

• Since 1858, when India was administered by the British Crown, provincial Governors were agents of the Crown, functioning under the supervision of the Governor-General.

  

• Over the following decades, the Indian nationalist movement sought various reforms from British rule, aiming for better governance. These efforts culminated in the Government of India Act, 1935, which came into force in 1937, bringing provincial autonomy. Post this, the Indian National Congress commanded a majority in six provinces.
• 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.
• Upon Independence, when the Provisional Constitution of 1947 was adapted from the 1935 Act, the post of Governor was retained but the phrases ‘in his discretion, ‘acting in his discretion, and ‘exercising his individual judgement’, were omitted.
• The post of the Governor was extensively debated in the Constituent Assembly, which too decided to retain it while re-orienting its role from the British era. Under the parliamentary and cabinet systems of governance adopted by India, the Governor was envisaged to be the Constitutional Head of a State.

What aspects of the post were debated in the Constituent Assembly?

• Dr. B.R. Ambedkar, referring to the Governor’s position as “ornamental”, called his powers “limited” and “nominal”.
• The two most important aspects of the Assembly debate became whether the Governor should be elected or nominated and whether he/she should be given certain discretionary powers.
• While it is now enshrined in Articles 154 and 155 of the Constitution that the Governor is to be nominated by the President as the executive head of the State, members had questioned whether a nominated Governor could be impartial.
• Article 143 of the draft Constitution (now Article 163) states that the Council of Ministers of a State with the Chief Minister as the head should “aid and advise” the Governor in carrying out his functions, “except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion”.
• Multiple members of the Assembly raised concern about the “discretion” clause.
• Dr. Ambedkar contended, in response to the 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 meant that the discretion was a “very limited” clause.
• Members also raised doubts about Article 147 (now 167), which empowers the Governor to ask the Chief Minister to furnish any information regarding the “administration of the affairs of the State and proposals for legislation”.
• It also empowers the Governor to ask the Chief Minister to submit for consideration to the Council of Ministers, a decision that was taken without the Council’s consideration.
• However, in the recent past, multiple State Governments have routinely expressed discontent over Governors interfering with day-to-day administration.

What other constitutional provisions talk about the Governor’s role?

• The other important provisions defining the Governor’s role state that the Governor appoints the Chief Minister after an election and the Council of Ministers on the advice of the CM (Article 164).
• The Governor can also summon, prorogue, and dissolve the Legislative Assembly (Article 174). By convention, he does this on the advice of the Council of Ministers while they enjoy the confidence of the Assembly.
• The M.M Punchhi Commission’s report on Centre-State relations points out that the exercise of his discretion happens only when following the Council’s advice would be unconstitutional or if the Council has lost the confidence of the Assembly.
• Every Bill passed in an Assembly has to be sent to the Governor (Article 200), after which he has four options —
  • to assent to the Bill, withhold assent, reserve the Bill for the consideration of the President,
  • or 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.
  • The legislature is supposed to quickly consider the recommendations but if it chooses to pass the Bill in the same form again, “the Governor shall not withhold assent therefrom”.
• As for the role of the Lieutenant Governor, Article 239, introduced through an amendment in 1956, states that each Union Territory will be administered by the President through an administrator appointed by him and given a designation he specifies.
• The administrators in some UTs are designated as Lieutenant Governors, with a special provision (Article 239AA) for the National Capital Territory of Delhi, which was inserted in 1991.
  • The Lt. 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.

How has the Supreme Court interpreted the role of the Governor?

• The role of the Governor was first questioned after the 1952 elections in undivided Madras.
• The Governor’s position was subject to much debate after the fourth general elections of 1967.
• In the subsequent decades, the formation of regional parties and tenuous alliances to form governments led to politically volatile situations in many States. In many such cases, Governors started being called upon to exercise their discretion, thus inviting allegations of partisanship.
• The calling for President’s Rule by Governors became a regular practice and it was imposed in States over a 100 times prior to 1994.
• It was with this backdrop that the Supreme Court’s nine-judge Bench gave its historic verdict in the S.R. Bommai case in 1994, ruling that imposition of President’s Rule shall be only in the event of a breakdown of constitutional machinery.
• The Supreme Court highlighted that “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.
• In another judgement, Shamsher Singh vs State of Punjab (1974), the Supreme Court said that 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”.

Commission to reform Centre-State relations

• The Sarkaria Commission, headed by Justice R. S. Sarkaria, said in its 1988 report that 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. It said that the Governor appointee should be a detached outsider and a person of eminence in some walks of life.
• Later, in 2007, the M.M Punchhi Commission report stated that 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.

Source: TH

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