Use and abuse of Governors’ powers

The attack on dissenting States by frequently misusing the Raj Bhavan reflects not only the Centre’s immediate political ambitions but also its lack of ideological commitment to the Constitution.

Tamil Nadu Chief Minister M. Karunanidhi with Governor Surjit Singh Barnala at Raj Bhavan on August 15, 2008. When he was Governor of Tamil Nadu in 1990-91, he refused to send a report to the Centre recommending imposition of President’s Rule in the State.

V.S. Ramadevi, former Chief Election Commissioner of India, was also the Governor of Karnataka and Himachal Pradesh. In a lecture delivered in 2005, she recalled the integrity of Surjit Singh Barnala, who had served as Governor of Tamil Nadu for about nine months in 1990-91. Barnala refused to send a report to the Centre recommending imposition of President’s Rule in the State under Article 356(1) of the Constitution, as dictated by the Centre. When the Centre persisted on its agenda and transferred him to Bihar as a punitive measure, Barnala resigned. It was this sense of independence and self-esteem coupled with strict adherence to constitutional obligations that prompted Ramadevi to appreciate him in her talk. She also narrated an incident that happened when she was officiating as Governor of Himachal Pradesh. After the 1998 Assembly elections in the State, there was uncertainty as to which party would form the government. In the given situation, she decided call the Congress, which was the largest party with 31 seats in the 68-member Assembly, to form the government after taking a direct testimony of the sole independent candidate elected to the Assembly. The candidate rushed to Raj Bhavan and complained that “he had been kidnapped and locked up by people belonging to the opposition party” (“Early Dissolution of Legislature—A Governor’s Dilemma”, Alladi Memorial Lectures-2. Tulika Books, 2019.)

Ramadevi’s talk reflected the general concern in the country over the use or misuse of Raj Bhavan in those days. The concern was predominantly with respect to two situations, formation of the State government and dissolution of the government. In recent times, one finds Governors in various States meddling with the day-to-day administration, which is the prerogative of elected governments in the respective States. This relatively new phenomenon are clearly in addition to the role Raj Bhavans often notoriously play in setting up or dismantling governments in States. Such instances called for judicial interference. They have come up in Arunachal Pradesh, Karnataka and Uttarakhand in recent years.

Constitutional History

According to the Government of India Act, 1858, the post of Governor was under the supervision of the Governor General. Under the Government of India Act, 1935, which came into force on April 1, 1937, Governors were given the responsibility to act as per the advice of provincial governments. Although this was done under the guise of provincial autonomy, Governors were to act as the representatives of the British Queen. Many provincial heads were dissatisfied with Governors. The debates in the Constituent Assembly indicate this point. Biswanath Das, a member of the Constituent Assembly, referred to the power of the Governor under the 1935 Act, which included the power “to return Bills for consideration of the Assembly and dismissal of Ministers and calling for elections” (Constituent Assembly Debates [CAD] May 31, 1949). He made an empirical statement in the Assembly: “I have my bitter experiences….. I was the Prime Minister of a province and I know how the Governor of my province was out to break my party” (CAD, May 31, 1949).

The experience since 1937 prompted many members in the Assembly to be skeptical about the possible intrusions by the Raj Bhavan into the Chief Minister’s functional autonomy. During the discourse on the issue whether the Chief Minister should send communications about certain administrative affairs to the Governor, Rohini Kumar Chaudhuri (member of the Constituent Assembly from Guwahati) asked: “Can you for a moment deny that the Chief Minister is certainly the person in authority in a province except in certain matters which will be under the Constitution in the discretion of the Governor? Now is it fair to say that it shall be the duty of the Chief Minister to do a certain thing or to furnish certain information to the Governor?.... What is (the Governor’s) business to call for any information? What can he do after getting the information? He has no business to call for any information or any file or anything of that kind” (CAD, June 2, 1949). He was suggesting amendment to the old Article 147 (which is presently Article 167). According to him, the information needed to be furnished to the Governor only if “in the opinion of the Chief Minister such information is necessary for a proper exercise of the duties of the Governor” (CAD, June 2, 1949).

Another issue pertained to the supervisory power of the Governor to see whether the decisions are taken by the Ministers collectively. H.V. Kamath opposed the move to provide the Governor with more powers in this regard. He said: “The business of the Council of Ministers, is entirely a matter for them to arrange and discuss among themselves and to arrive at any particular procedure they like. If a matter has been considered by one of the Ministers, but has not been considered by the whole Council, the Governor cannot step in and tell the Chief Minister, ‘you must put it before the Council of Ministers’.”

On June 2, 1949, B.R. Ambedkar, in one of his famous speeches in the Constituent Assembly, said that “the Governor under the Constitution has no functions which he can discharge by himself” and that he has only “certain duties to perform”. Yet, the legitimacy of provisions that empowered the Governor to exercise his discretion was not satisfactorily explained, even by Ambedkar, in the debates. This is an area that always posed troubling questions, both legal and political.

Trust bestowed on Governor

As in the case of all other constitutional functionaries, the makers of the Constitution bestowed a great amount of trust on the office of the Governor. During the debates when H.V. Kamath asked as to what was the guarantee for non-interference by the Governor in the normal course of affairs, P.S. Deshmukh answered: “The guarantee…... is the Governor’s wisdom and the wisdom of the authority that will appoint the Governor” (CAD, June 2, 1949). Whether this trust bestowed upon the Governor by the Constitution and its makers is honoured is a question requiring contextual analysis in the light of the provisions of the Constitution and political realities. The Indian experience so far demonstrates a long and continuous misuse of the gubernatorial power, all motivated by the Centre’s partisan political interest of the day. This happened irrespective of the political character of the regime at the Centre.

Article 167 of the Constitution contains provisions for “duties of Chief Minister as respects the furnishing of information to Governor”. In contrast to what Rohini Kumar Chaudhuri proposed in the Constituent Assembly, the Constitution imposed a duty on the Chief Minister to convey “all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation”. The Governor can call for such details, going by Article 167(b) of the Constitution. According to Article 167 (c), the Governor can alert the Council of Ministers about a decision taken by any Minister that escaped the attention of the Council. This provision, however, needs to be read and understood in the light of the broader scheme of governance formulated by the Constitution.

Article 163 (1) implies that the Governor is generally bound by the Cabinet decision. The judgment by the Constitution Bench of the Supreme Court in Shamsher Singh (1974) settled the position that except in matters where he could exercise discretion as permitted by the Constitution, the Governor must follow the advice of the Cabinet. Yet, in matters like grant of prosecution sanction for proceeding against a Minister, the Governor can take an independent decision, exercising his discretion. The Supreme Court said so in State of Maharashtra vs Ramdas S. Naik (1982) and Madhya Pradesh Special Police Establishment vs State of Madhya Pradesh (2004).

According to Article 239(2) of the Constitution, the Governor can act as administrator of an adjoining Union Territory, if so appointed by the President, and on such an appointment, he can “exercise his functions as such administrator independently of his Council of Ministers”. Under Article 200, he can choose to withhold the assent to a Bill at the first instance. He has a duty to give assent to the Bill, if the House reiterates it. He can also reserve a Bill for consideration by the President.

The most controversial constitutional provision relating to the Centre-State relations that proved to be dangerous to democracy and federalism at times, has been Article 356. It has a broad and elastic vocabulary that enables President’s Rule in a State on the basis of a Governor’s report about “failure of constitutional machinery in States”. The indiscriminate use of this power by the Centre is justiciable in a process of judicial review ( S.R. Bommai vs Union of India , 1994).

No unlimited discretion

In 2016, when the Arunachal Pradesh Governor tried to advance the Assembly session and facilitated the Speaker’s removal and caused change of government in the State, the Supreme Court had to intervene effectively. The Governor, in an unprecedented move, got actively involved in the disqualification process, a function that clearly fell within the realm of the Speaker. Accordingly, another government, with Kalikho Pul as the Chief Minister, was installed in the State. The Supreme Court turned the clock back and restored the Congress government. The court clarified that the Governor was not vested with unlimited power of discretion. It held: “There is no justification for a Governor to be disturbed about proceedings in connection with disqualification of the MLAs under the tenth Schedule (of the Constitution)” ( Nabam Rebia vs Deputy Speaker , 2016). The court also said that it was clearly a case of constitutional impropriety. While considering the case, Justice Madan B. Lokur opined that in a parliamentary democracy, when the Governor could not dominate the Executive, it was unthinkable that he could dominate the Legislature.

The problems caused on account of the abuse of power by Governors led to re-examination of the legitimate role of Raj Bhavans according to the constitutional scheme. The Punchhi Commission and Sarkaria Commission went into the nature of gubernatorial power in the Indian constitutional framework, on the basis of the country’s experience in this regard.

Commissions’ views

According to the Sarkaria Report: “The Governor as constitutional head of the State has ‘a right to be consulted, to warn and encourage’ and his role is overwhelmingly that of ‘a friend, philosopher and guide’ to his Council of Ministers.” It said the Governor should function as a “constitutional sentinel” acting as a “vital link between the Union and the State”. Although the report said that the discretionary powers vested with Raj Bhavan “should be left untouched”, vital recommendations were made to prevent gubernatorial intrusions into the functional autonomy of the elected governments at the State.

One should, however, note that there is a good amount of romanticism in the Sarkaria report. It wanted the Governor to be a “detached figure and not too intimately connected with the local politics of the State”. It said that “the Governor’s task is to see that a government is formed and not to try to form a government which will pursue policies which he approves”. It formulated clear guidelines for exercise of discretion in areas where the Constitution provides for such discretion. But the political reality of contemporary India is essentially different. Though there were attempts to sabotage the scheme of constitutional governance earlier, there was no ideological negation of the premises of the Constitution. The Narendra Modi government, ever since its formation in 2014, has been trying to dismantle even the basic principles such as secularism, federalism and socialism, which constitute the foundational law of the Constitution. The attack on dissenting States by frequently misusing the office of the Governor reflects not only the Centre’s immediate political ambitions but its lack of ideological commitment to the Constitution. This was not the case until 2014.

Despite the Sarkaria Commission recommendations and repeated judicial endorsements to them, gubernatorial excesses have continued in India in one way or the other. The Hindutva policy is essentially homogeneous and unionist. It does not believe in the constitutional virtue of decentralisation of power or egalitarian Centre-State relations. Interference with the administration in the States is clearly illegitimate and unlawful. Viewed thus, many of the recent activities of the Governors in Tamil Nadu, West Bengal and Kerala offend the scheme of the Constitution. Any clandestine attempt to mis-interpret and misuse the text of constitutional provisions will negate the spirit of the fundamental law. The only way ahead is the exercise of perpetual vigilance by the judiciary and the people at large. The most effective device to check the abuse of the Constitution is people’s constitutionalism.

Ka leeswaram Raj is a lawyer at the Supreme Court of India.