Governors doing the Centre’s bidding

As an appointee of the Centre, many a Governor has chosen to serve the political interests of the ruling party at the Centre and chosen to forget his designated role as the first citizen of the State over which he reigns but does not rule.

Najeeb Jung, when he was Lieutenant Governor of Delhi, at a press conference in New Delhi on August 4, 2016. Kiran Bedi’s clashes with Puducherry Chief Minister V . Narayanasamy were reminiscent of the Arvind Kejriwal-Najeeb Jung fracas in Delhi.

The late T.N. Seshan’s reign as Chief Election Commissioner was sought to be cut short by offering him the governorship of an important State. He brushed the offer aside saying: “I cannot be a Governor because that would make my wife a Governess.” There was more truth in the joke than Seshan (a former Home Secretary) let on. A temporary servant, appointed for a reasonable period of time terminable at the pleasure of the master, to supervise and assist an unruly brood is a job description that fits both Maria von Trapp and, many years later, Kiran Bedi.

Kiran Bedi’s abruptly concluded tenure as Lieutenant Governor of Puducherry had the air of a strict governess about it. There were several moments when former Chief Minister V. Narayansamy must have felt like an infant being disciplined by a nanny-like figure who almost took over the administration of the Union Territory. His protests against her were of no avail, and in the end, the Centre dismissed her just before Narayansamy’s government was itself pulled down by defections. The Union Territory is now under President’s Rule with no incumbent Chief Minister heading to the election this year. The nearly five-year tenure has seen the entire gamut of gubernatorial powers being used to hobble an elected Chief Minister who remained in office but seemingly at the displeasure of a Governor who was embroiled in day-to-day administration.

Kiran Bedi’s clashes with the Chief Minister were reminiscent of the Arvind Kejriwal-Najeeb Jung fracas in the National Capital Territory of Delhi. There have been other instances in States such as West Bengal and Kerala, where Governors Jagdeep Dhankar and Arif Mohammed Khan too have had running spats with their respective Chief Ministers. Far from being a friend, philosopher and guide to the local Chief Minister, many a Governor appointed by the ruling party at the Centre has made life miserable for the Chief Minister of an opposition-ruled State. As an appointee of the Centre, many a Governor has chosen to serve the political interests of the ruling party at the Centre and chosen to forget his designated role as the first citizen of the State over which he reigns but does not rule.

Constitutional colonial relic

An appointed Governor is a constitutional relic carried over from a colonial government. The office of the Governor in India can be traced to the advent of the East India Company. With Queen Elizabeth I’s issuance of the charter of 1601, the Governor was bestowed with the legislative powers to make, ordain and constitute such laws, orders and ordinances as required for the governance of the East India Company. Various provinces ruled by various governors who reported to the Viceroy at the centre and who in turn reported to the Secretary of State for India was a model that served British India up to 1935. The democratic aspirations of the freedom movement and reforms towards responsible government eventually resulted in the passage of the Government of India Act, 1935, which established provincial Legislative Assemblies elected from a limited franchise. However, to ensure that that overriding power remained with the British, the Act retained the post of Governor, with vast discretionary powers. The elected governments of the Congress party refused to assume office without an assurance that Provincial Governors would not use their special powers and would let the ministries govern independently. They assumed office only after Viceroy Lord Linlithgow gave an assurance that: “There is no foundation for any suggestion that a Governor is free, or is entitled, or would have the power, to interfere with the day-to-day administration of a province outside the limited range of the responsibilities confined to him.”

The Indian Constitution, which is largely modelled on the Act of 1935, did not do away with the office of Governor but left it with little power. Draft Article 143 (what ultimately became Article 163 of the Constitution) was met with stiff resistance in the Constituent Assembly. When the motion to adopt the Article was tabled, H.V. Kamath from the Central Provinces raised an objection against it and suggested an amendment: “It would be wrong I say, to invest a Governor with these additional powers, namely, discretionary powers. I feel that no departure from the principles of Constitutional Government should be favoured except for reasons of emergency and these discretionary powers must be done away with.” Brajeshwar Prasad from Patna demurred: “I feel that the Governor should be vested with the power of special responsibilities which the Governors under the British regime were vested in this country. I feel that there is a dearth of leadership in the provinces. Competent men are not available and there are all kinds of things going on in the various provinces. Unless the Governor is vested with large powers, it will be difficult to effect any improvement in the provincial administration. Such a procedure may be undemocratic but such a procedure will be perfectly right in the interest of the country….”

Faced with differing perceptions in the Constituent Assembly, B.R. Ambedkar had the final word. His central argument was that the Governors would not have powers to overrule the decisions of the Council of Ministers. “The first thing I would like the House to bear in mind is this. The Governor under the Constitution has no functions which he can discharge by himself: no functions at all…. Even under this article, the Governor is bound to accept the advice of the Ministry. Therefore, the criticism that has been made that this article somehow enables the Governor to interfere or to upset the decision of the Cabinet is entirely beside the point, and completely mistaken.” According to Ambedkar, the primary duty of the Governor was to ensure the discharge of “good, efficient, honest administration”.

Potent weapon in Centre’s armoury

Despite Ambedkar’s formulation, the office of Governor remained a potent weapon in the armoury of an overbearing Centre in the quasi-federal structure of India. It did not help that gubernatorial appointments were largely confined to the political classes, with retiring politicians being put out to pasture in the vast expanses of Raj Bhavans all over the country. In the Constituent Assembly, Jawaharlal Nehru had said: “On the whole, it probably would be desirable to have people from outside—eminent people, sometimes people who have not taken too great a part in politics. Politicians would probably like a more active domain for their activities, but there may be an eminent educationist or persons eminent in other walks of life, who would naturally while cooperating fully with the Government and carrying out the policy of the Government, at any rate helping in every way so that that policy might be carried out, he would nevertheless represent before the public someone slightly above the party and thereby, in fact, help that government more than if he was considered as part of the party machine.” In actual practice, however even Nehru’s government largely confined itself to the political classes in its choice of gubernatorial appointments.

In the years before 1967, the Congress had a clear majority in most of the State Legislative Assemblies. The provincial ministries were therefore more or less stable. Moreover, as both the Union government and the State governments were run by the same party, there was little possibility of a serious Centre-State dispute. The Governor, as a natural consequence, played a ceremonious role and was largely beyond public controversy. There were exceptions such as the 1959 dismissal of the E.M.S. Namboodripad ministry in Kerala by Governor Bargula Ramakrishna Rao. In Kashmir, Sadr-e-Riyasat Karan Singh dismissed the Government of Sheikh Abdullah in 1953. These instances, however, were few and far in between.

The situation changed after 1967, when several non-Congress governments were formed in various States and the discretionary powers of the Governor came in handy in the making and unmaking of governments. The Governor’s role became crucial in questions of choosing the Chief Minister, testing the majority enjoyed by the government, dismissal of a Chief Minister, dissolution of the Assembly and in recommending President’s Rule. Even the Supreme Court recognised these broad areas of discretion. In the 1974 case of Shamsher Singh vs the State of Punjab , Justice Krishna Iyer ruled: “In short the law of this branch of our Constitution is that the President and Governor, custodians of all executive and other powers under various Articles shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessary, although in this area the Head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step.”

These areas of discretion enjoyed by Governors of the various States have been magnified in federal units that are not full States. Here the Lieutenant Governors have greater areas of operation and report directly to the Ministry of Home Affairs at the Centre. In the case of Delhi, amendments to the National Capital Territory Act have eroded the jurisdiction of the elected government and made the Lieutenant Governor almost a Governor General, without whose assent and active cooperation no substantial work of administration can proceed. A Kiran Bedi or a Najeeb Jung, thus, could immobilise an elected government in any area that looked likely to lack support at the Centre. Post 2019, a government with a renewed majority at the Centre has had little incentive to cater to State governments not allied to it. Thus, in Maharashtra, Governor Bhagat Singh Koshyari, early one morning, hurriedly swore in Devendra Fadnavis as Chief Minister without even satisfying himself that Fadnavis indeed had the necessary support in the House. Karnataka Governor Vajubhai Vala accelerated the demise of Chief Minister H.D. Kumaraswamy’s coalition government.

In dealing with the States of the Union, the Central government almost emulates the British Empire’s worst practices in dealing with component provinces. Rohini Kumar Chaudhury reminded the Constituent Assembly of the sordid manner in which Governors had operated under British-ruled India. “Sir, I know to my cost and to the cost of my Province what ‘acting by the Governor in the exercise of his discretion’ means. It was in the year 1942 that a Governor acting in his discretion selected his Ministry from a minority party and that minority was ultimately converted into a majority. I know also, and the House will remember too, that the exercise of his discretion by the Governor of the Province of Sindh led to the dismissal of one of the popular Ministers—Mr Allah Bux. Sir, if in spite of this experience of ours we are asked to clothe the Governors with the powers to act in the exercise of their discretion, I am afraid we are still living in the past which we all wanted to forget.”

From Rohini Chaudhary to V. Narayansamy, the complaints of elected representatives against the wrongful exercise of discretion by unelected Governors remain constant. At least four substantial commissions have made various recommendations in this regard: the first Administrative Reforms Commission Report of 1969, the Sarkaria Commission Report of 1984, the National Commission to Review the Working of the Constitution of 1998, and the Punchhi Commission Report of 2010. Broadly speaking, these reports speak of appointing non-political Governors through independent broad-based mechanisms, securing the consent of the concerned Chief Minister to the appointment, and giving Governors a fixed, non-renewable tenure. There are also recommendations about the manner of exercising discretion in the appointment and dismissal of Chief Ministers and in the recommendation of President’s Rule.

Principles for removal of Governors

Despite the availability of these recommendations, no single government after 1967 has actually endeavoured to act upon them. Governors have often been subject to a hire-and-fire regime based on the Central government’s perception of their utility. In 1977, the Janata Party government at the Centre decided to terminate all Governors in States where the Congress party had been routed in the election. That principle was followed thereafter by the V.P. Singh government that came into power in 1989. When the United Progressive Alliance government came to power in 2004, some Governors were required to put in their papers. In B.P. Singhal vs Union of India , a Constitution Bench of the Supreme Court laid down the following principles for the removal of Governors: “The withdrawal of presidential pleasure under Article 156 cannot be an unfettered discretion, nor can it be arbitrary, capricious, unreasonable or mala fide . The power of removal should be used only if there is material to demonstrate misbehaviour, impropriety or incapacity. In other words, that removal should be only on existence of grounds which are similar to those prescribed for impeachment in the case of other constitutional functionaries.”

The court further held: “We have… already rejected the contention that the Governor should be in sync with the ideologies of the Union Government. Therefore, 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. Though the Governors, Ministers and Attorney General, all hold office during the pleasure of the President, there is an intrinsic difference between the office of a Governor and the offices of Ministers and Attorney General. 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.”

Despite the unambiguous declaration of the law, the constitutional heads of States, persist in remaining employed agents who are parts of a political team. The fault thus lies not in their stars but in the holders of the constitutional office themselves, who persist in seeing themselves as underlings. The fiercely independent T.N. Seshan of blessed memory correctly declined to govern himself into subservience. Thank God for that choice and all that he achieved in his independent stint in another constitutional office, that of Chief Election Commissioner. The contrast speaks for itself.

Sanjay Hegde is Senior Advocate, Supreme Court of India.