Consentia on Law - VOl - II

Governor of the states: A mere Public Figure

INDIAN FEDERALISM

The history of the Indian federalism can be traced back to the provisions enshrined in the Government of India Act, 1935. The Indian constitution fulfils the requirement of a federal system by prescribing the presence of two levels of governance simultaneously operating at (i) national, central and federal government; (ii) state, regional and provincial government along with the division of powers between centre and state allocated by the constitution. In India the supreme law of the land is the Constitution which possesses characteristics of federalism. A constitution which possesses following characters may be called a federal constitution:

  • The distribution of powers between Centre and States. Matters of national importance are given to the Centre and matters of the local importance are given to the States.
  • Every power whether legislative, executive or judicial belonging to the Centre and States are derived from the Constitution.
  • It must be in writing and its amendment should be rigid to maintain its supremacy.
  • The judiciary remains independent to maintain the division of powers between two levels of government as stipulated in the constitution.[1]

Even though there is a distribution of powers between the Union and the States as under a federal system, the distribution has a strong Central bias and the powers of the States are hedged in with various restrictions which impede their sovereignty even within the sphere limited to them by the distribution of powers basically provided by the constitution .By empowering the Union Government to issue directions upon the State Governments to ensure due compliance with the legislative and administrative action of the Union [Article 256-257], and to supersede a State Government which refuses to comply with such directions [Article 365} .And also by empowering the President to withdraw to the Union the executive and legislative powers of a state under the Constitution if he is, at any time, satisfied that the administration of the State cannot be carried on in the normal manner in accordance with the provisions of Constitution, owing to political or other reasons [Article 365]. From the Federal standpoint, this seems to be anomalous inasmuch as the Constitution-makers did not consider it necessary to provide for any remedy whatever for a similar breakdown of the Constitutional machinery at the Centre. Hence, Panikkar is justified in observing- “The Constitution itself has created a kind of paramountcy for the Centre by providing for the suspension of the State Governments and imposition of Presidents rule under certain conditions such as the breakdown of the administration. Secondly, the power to suspend the constitutional machinery may be exercised by the President, not only on the report of the Governor of the sate concerned but also suo moto, whenever he is satisfied that a situation calling for the exercise of this power has arisen. It thus a coercive power available to the Union against the units of the federation.[2]

Appointment of Governor

Article 153 of the Indian Constitution reads that “there shall be a Governor for each state [Provided that nothing shall prevent the appointment of the same person as Governor for two or more states].[3] Hence it will be simpler to say that a Governor of States is a Constitutional figure and can derive its power from our Constitution itself. The Constitution also confers the executive power of the States with the Governor.

Article 154 also empowers the Governor of the States with Executive powers of the State Government

  • The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution
  • Nothing in this article shall
  • be deemed to transfer to the Governor any functions conferred by any existing law on any other authority; or
  • Prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor.[4]

Hence it is the Governor of the State who appoints the Chief Minister who enjoys the support of the majority in the Vidhan Sabha. The governor also appoints the other members of the Council of Ministers and distributes portfolios to them on the advice of the Chief Minister. The Council of Ministers stay in power only during the ‘pleasure’ of the Governor. Also,the President consults the Governor while appointment of judges in both High Courts and the District Courts. All administrations of the States are carried on his name, thereby making the Governor as the nominal head of the State.

It is the Article 155 which talks about appointment of the Governor which reads Appointment of Governor The Governor of a State shall be appointed by the President by warrant under his hand and seal.[5] It is on the recommendations of the Central Government that the President appoints Governor of the Sates. Just like the President at the Centre is a nominal head of the Country it is the Governor who is State’s nominal head.

Further mentioned in Article 156 is the tenure of Governor

  • The Governor shall hold office during the pleasure of the President
  • The Governor may, by writing under his hand addressed to the President, resign his office
  • Subject to the foregoing provisions of this article, a Governor shall hold for a term of five years from the date on which he enters upon his office
  • Provided that a Governor shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.[6]

The doctrine of pleasure has its origins in English law. In England, the moral rule is that a civil servant of the Crown holds office during the pleasure of the Crown. This means his services can be terminated at any time by the Crown, without assigning any reason. Even if there is a contract of employment involving the Crown, the Crown is not bound by it. In other words, if a civil servant is dismissed from service he cannot claim arrears of salary or damages for premature termination. The doctrine of pleasure is based on public policy. In Union of India v. Tulsiram Patel, (2) AIR 1965 SC 1416 (1437, 1438), the Supreme Court held that the “pleasure doctrine” was neither a relic of the feudal age nor was it based on any special prerogative of the British Crown but was based upon public policy. Ministers frame policies and the Legislature enacts laws and lays down the mode in which such policies are to be carried out and the object the legislation seeks to achieve. From the nature things, the task of efficiently and effectively implementing these policies and enactments, however, rests with the civil services. The members of the public are therefore vitally interested in the efficiency and integrity of such services.[7] It thus on the basis of this doctrine the Governor enjoy its constitutional position as the nominal head of the State.

Article 157 mentions the qualification of a Governor that is “Qualifications for appointment as Governor No person shall be eligible for appointment as Governor unless he is a citizen of India and has completed the age of thirty five years”[8]

Since the Governor is a Constitutional figure every detail has been specifically mentioned in the Indian Constitution.as far as the condition of the Governor’s Office is concerned it has been enshrined under Article 158 – “Conditions of Governor office .

Being a nominal head the Governor vested in him is the pardoning powers enshrined under Article 161Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.”[9] Furthermore powers are vest in him are the

  • Executive Powers :

The Chief Minister is appointed by the Governor who enjoys majority in the house. Also, all administrative functions of the States are carried out in the name of the Governor.

  • Legislative Powers:

The Governor has the power to summon both the houses of the state legislature prorogues them. He also has the power to dissolve the Vidhan Sabha but these powers are formal and the governor while using these powers must accord to the chief minister followed by the council of ministers. The governor also has the power to reserve certain bills for the president

.

  • Financial Powers:

A money bill in the State Legislative Assembly can be introduced only on the prior recommendations of the Governor. He also causes to be laid before the State Legislature the annual financial statement which is the State Budget. He can also make advances out of the Contingency Fund of the State to meet any unforeseen expenditure. Moreover, he constitutes the State Finance Commission.

 

  • Discretionary Powers:

The governor can use these powers: a) If no party gets an absolute majority, the governor can use his discretion in the selection of the chief minister; b) During an emergency he can override the advice of the council of ministers. At such times, he acts as an agent of the president and becomes the real ruler of the state; c) He uses his discretion in submitting a report to the president regarding the affairs of the state; and d) He can withhold his assent to a bill and send it to the president for his approval.

Concluding on the powers of the Governor it can be stated that the Governor may be a mere nominal head but vests upon him are the various powers and in the absence of this figure the same cannot be fulfilled by any other portfolio. Hence the Governor is rightly known as Ceremonial Head of the States.

The term of governor’s office is normally 5 years but it can be terminated earlier by either dismissal by the president on the advice of the prime minister of the country, at whose pleasure the governor holds office or on resignation by the governor. There is no provision of impeachment, as it happens for the president.

Political Pressure

As we see that The President of India is “elected”, Governor is a “selected” by the incumbent Government. That is why there have been many instances when governors appointed by previous government are removed by incoming government. The reasons are more political. The Supreme Court has ruled that governors need to be given security of term but is generally not adhered to.

But since the Governor enjoys its office only at the pleasure of The President the nominal head has truly become A Mere Public Figure. The Governor who is appointed as the head of the state now functions only on the whims and fancies of the Government at the centre. This is due the threat that The President on the advice of the cabinet may remove the Governor at any point of time. A Constitutional head has now become a puppet under the political pressure of the ruling party, where the game is all about numbers.

The question whether the removal of Governor is open to Judicial Review has been beautifully explained by the Court in the case B.P. Singhal v. Union of India. Here are some of the important parts of the Judgment. When a Governor holds office during the pleasure of the Government and the power to remove at the pleasure of the President is not circumscribed by any conditions or restrictions, it follows that the power is exercisable at any time, without assigning any cause. However, there is a distinction between the need for a cause for the removal, and the need to disclose the cause for removal. While the President need not disclose or inform the cause for his removal to the Governor, it is imperative that a cause must exist. If we do not proceed on that premise, it would mean that the President on the advice of the Council of Ministers, may make any order which may be manifestly arbitrary or whimsical or mala fide. Therefore, while no cause or reason be disclosed or assigned for removal by exercise of such prerogative power, some valid cause should exist for the removal.

Therefore, even though it cannot be said that an order under Article 156 is not justiciable, but it could very well be inferred that no reason need be assigned and no cause need be shown and no notice need be issued to the Governor before removing a Governor.

This Court has examined in several cases, the scope of judicial review with reference to another prerogative power – power of the President/Governor to grant pardon etc., and to suspend, remit or commute sentences. The view of the Court is that the power to pardon is a part of the constitutional scheme, and not an act of grace as in England. It is a constitutional responsibility to be exercised in accordance with the discretion contemplated by the context. It is not a matter of privilege but a matter of performance of official duty. All public power including constitutional power, shall never be exercisable arbitrarily or mala fide.

While the President or the Governor may be the sole Judge of the sufficiency of facts and the propriety of granting pardons and reprieves, the power being an enumerated power in the Constitution, its limitations must be found in the Constitution itself.

In the case of S.R. Bommai v. Union of India[1], the Court held that Article 74(2) merely bars an inquiry into the question whether any, and if so what, advice was tendered by the Council of Ministers to the President but does not bar the scrutiny of the material on the basis of which the President has made the order.

Therefore, though the sufficiency of the material could not be questioned, legitimacy of the inference drawn from such material is open to judicial review.

Article 156(1) provides that a Governor shall hold office during the pleasure of the President. Having regard to Article 74, the President is bound to act in accordance with the advice of the Council of Ministers. Therefore, even though under Article 156(1), the removal is at the pleasure of the President, the exercise of such pleasure is restricted by the requirement that it should be on the advice of the Council of Ministers.

The President in exercising power under Article 156(1) should act in a manner which is not arbitrary, capricious or unreasonable. In the event of challenge of withdrawal of the pleasure, the court will necessarily assume that it is for compelling reasons. Consequently, where the aggrieved person is not able to establish a prima facie instance of arbitrariness or mala fides, in his removal, the court will refuse to interfere. However, where a prima facie case of arbitrariness or mala fides is made out, the Court can require the Union Government to produce records/materials to satisfy itself that the withdrawal of pleasure was for good and compelling reasons. What will constitute good and compelling reasons would depend upon the facts of the case.

Having regard to the nature of functions of the Governor in maintaining centre-state relations, and the flexibility available to the Government in such matters, it is needless to say that there will be no interference unless a very strong case is made out. The position, therefore, is that the decision is open to judicial review but in a very limited extent.[10]

Implication for Federalism

Indian Constitution is federal with strong and indestructible Centre. Dr. B.R.Amedkar viewed about the nature of the Constitution that “Indian Constitution could be both federal and unitary. In normal times, it could work as a Federal Constitution and at the time of war or economic and political crisis, it will work as a unitary one.

For the appointment of the Governor the Drafting Committee had suggested two methods for the appointment of the Governor in the Draft Constitution.[11] These two alternatives had one thing in common that they proposed that the Governor be elected. There were three to four amendments, which set out the principle, which completely opposed these two alternatives drafts of Article 131 of the Draft Constitution and suggested that “the Governor should be nominated”. Because we had both the Governor and the Chief Minister elected the Governor would not have been a constitutional head.

The Sarkaria Commission and the Punchhi Commission have given some recommendations/ guidelines regarding the appointments of Governor. Thus both appointment as well as removal of the governor affects the federalism.

The Governor acts as an agent to the Centre. The role of the Governor as a head of the State is vital as he also plays multifaceted roles. He acts as link between the Centre and the State. On one hand he is the head of the State and on the other he is the representative of the Centre. The procedure of appointment and removal of the Governor makes the Centre more powerful because his term of office is not secure and he acts only on the actions of the Centre. This controlling power of Centre has varied it from the US model of federal system where the centre does not intervene in the matters of the State where by leaving our Constitution as a Quasi Federal Constitution.

The Constitutional head is now merely a nominal head as the term in the office is at the disposal of the ruling party.

  

Suggestions

There are views that a non political Governor may be having more credibility- which is exactly what the office needs. In accordance to the same certain suggestions have been made-

First, it is not enough if an appointee just resigns from a political party a day before his appointment. Only those who are not currently in active politics—say, a minimum of two years after resigning from active political party membership—should be eligible for governorship. Someone resigning yesterday from the Congress party cannot today be made governor. This does not create adequate distance from politics.

Second, non-partisan people, including eminent persons and Supreme Court and high court judges, and former senior bureaucrats, can be considered as major catchment areas for governorships.

Three, state governments should be consulted on appointments, and if they have serious objections to someone being posted as governor, the centre should reconsider even without giving states a veto.

Four, the possibility of having an elected governor need not be ruled out. If the President of India can be elected using a combined electorate from states and Centre, something similar can be done with state governors. Maybe the electors could be a mix of MLAs and elected municipal and panchayat officials.

Five, transfers of governors should be possible at any time.[12]

Conclusion

 

[1] Available at http://shodhganga.inflibnet.ac.in/bitstream/10603/3695/9/09_chapter%203.pdf access on October 13th, 2014.

[2] Dr.Durga Das Basu, ‘Introduction to the Constitution of India’ (2009), 20th ed, Lexis Nexis Butterworth’s Wadhwa Nagpur .

[3] Article 153

[4]Article 154

[5] Article 155

[6] Article 156

[7] S.Mohan ,The doctrine of ‘pleasure’ and some Governors tenures, The Hindu, June 22,2014

[8] Article 157

[9] Article 161

[10] http://www.desikanoon.co.in/2014/06/removal-of-governor-in-india-is-open-to.html access on October 14,2014.

[11] Vol. III CAD, dated 30hMay 1949, p. 424

[12] R.Jagannath, Chnging UPA’s Governors: Why Tharoor is only half-right, F.Politics, Jun 18, 2014.

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