Governors today not the wise men that Constituent Assembly had envisaged

Many of them have disgraced their high office by flagrantly violating its principles.

Governors and Rajpramukhs of States at Rashtrapati Bhavan, New Delhi, on February 4, 1953. Sitting (L to R): Dr H.C. Mookerjee, Governor of West Bengal, H.H. the Rajpramukh of Tanvancore-Cochin, H.H. the Rajpramukh of PEPSU, H.H. the Rajpramukh of Saurashtra, H.H. the Rajpramukh of Mysore, Prime Minister Jawaharlal Nehru, President Dr Rajendra Prasad, Vice-President Dr S. Radhakrishnan, Chandulal Trivedi, Governor of Punjab (I), H.H. the Rajpramukh of Madhya Bharat, H.H. the Rajpramukh of Rajasthan, Jairamdas Doulatram, Governor of Assam and Sri Prakasa, Governor of Madras. Standing (L to R): Maj. Gen. Himat Sinhji, Lt. Governor of Himachal Pradesh, Pattabhi Sitaramayya, Governor of Madhya Pradesh, Saiyed Fazl Ali, Governor of Orissa, Governor of Bihar, Karan Singh, the Sadar-i-Riyasat of Jammu and Kashmir and K.Santhanam, Lt. Governor of Vindhya Pradesh. | Photo Credit: The Hindu Archives

There is considerable controversy over the role of the Governor. The Governors under the Government of India Act, 1935, were by the Raj, of the Raj and for the Raj. Initially the Constituent Assembly (CA) wanted elected Governors, as proposed by a sub-committee of B.G. Kher, K.N. Katju and P. Subbarayan on June 10, 1947. Ironically, Katju was later appointed the Governor of West Bengal though he clearly took the view that the office should be apolitical. The Draft Constitution of 1948 was ambivalent, with the Drafting Committee leaving it to the CA to decide whether Governors should be elected or nominated. There was an Instrument of Instructions in the Fourth Schedule to guide Governors: it was sadly excluded for its British antecedence and because Jawaharlal Nehru and Sardar Vallabhbhai Patel thought it would be unenforceable.

At some stage it was thought that Governors should be selected from a panel. The proposal for a Deputy Governor was dropped. Jayaprakash Narayan echoed an emerging view of the CA that the States could not have an elected Governor who would clash with the proposed electoral democracy for the States. Curiously, Narayan also argued the case for a Governor elected by proportionate representation. B.R. Ambedkar contradicted himself by saying that the Governor would be just a symbol and also have discretionary powers. On May 30-31, 1949, Brajeshwar Prasad moved an amendment saying that the Governor be appointed by the President. Most of the CA accepted this change. K.M. Munshi supported the proposal and Nehru intervened to say that “in the present context of the Constitution, [it] was not only desirable from a practical point of view but from a democratic point of view too, it was worthwhile and desirable”. T.T. Krishnamachari felt that after the “frank speech of the Prime Minister” the discussion should stop and that the opposition to this concentration of power in the President was a “bogey”.

In the end, Ambedkar settled the debate by saying that the Governor’s powers would be circumscribed by the Constitution and statutes. Tactically he left it to the CA, knowing that the amendment would be carried. Clearly, his optimistic assumption that Governors would respect the bounds of their discretion was way off the mark for the future. Several independent members expressed concern over the Governor’s powers and the apprehension that the Governor would become an agent of the Centre. I am mentioning all this to show that many CA members were wary of the office of Governor as appointed by the President.

What is a good Governor?

Despite the differences expressed in the CA, Nehru spoke for all when he outlined what was expected of a Governor.

“I think it would be infinitely better if he was not so intimately connected with the local politics of the province…And would it not be better to have a more detached figure, obviously a figure that… must be acceptable to the Government of the province and yet he must not be known to be a part of the party machine of that province…. But 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.”

After Indira Gandhi’s misuse of the post in the 1960s, the Bhagwan Sahay-led Report of the Committee of Governors (1971) expected Governors to act according to the Constitution (wow!) but made a dangerous proposal:

“The Committee recommends that a special wing may be set up in the President’s secretariat which would ascertain all the facts and circumstances relating to each situation which may arise from time to time requiring actions by a Governor in the exercise of his powers and the reasons for the action taken by him in a particular situation. The facts as ascertained could then be confidentially communicated to all the other Governors, with the permission of the President. This procedure would be of great assistance to the Governors in knowing authoritatively how and why a particular Governor took a certain action and the circumstances that led to it. The information would also help to establish a degree of uniformity in the treatment of situations where they may be found to be identical or similar, and perhaps even, in some cases, certain norms of action based on accepted canons of interpretation of the Constitution.”

Prime Minister Indira Gandhi, addressing a programme at Mehrauli, New Delhi, in October 1982. To her right are P. Venkatasubbaiah, Minister of State for Home Affairs, and Lt. Governor Jagmohan, who was close to her. Jagmohan was later made the Governor of Jammu & Kashmir. | Photo Credit: THE HINDU ARCHIVES

Effectively, it merely proposed the case of the good Governor acting on better information from the Centre. The Sarkaria Commission on Centre-State Relations in its report (1987) was more realistic in analysing the criticism relating to Governors (i) choosing Chief Minister, (ii) testing majorities (iii) dismissing Chief Minister (iv) dissolving the Legislative Assembly (v) recommending President’s Rule (vi) reserving Bills for the President’s consideration. The Sarkaria analysis was devastating, exposing everything wrong with Governors. As far as selecting a Chief Minister and the Cabinet was concerned, it used the test of “most likely to command a majority”, whether as single party or combination. But most importantly, it suggested that if a Chief Minister does not have an absolute majority in the Assembly, s/he should seek a vote of confidence within 30 days of taking office. This meant that a minority government could never be selected to power. It listed the 75 times (in 37 years) that President’s Rule was imposed in States and showed how Governors were hired and fired.

Selection criteria

On the selection of Governors, it laid down criteria which were similar to Nehru’s but came with the additional wisdom of hindsight.

4.6.09 We recommend that a person to be appointed as a Governor should satisfy the following criteria:-

(i) He should be eminent in some walk of life.

(ii) He should be a person from outside the State.

(iii) He should be a detached figure and not too intimately connected with the local politics of the State; and

(iv) He should be a person who has not taken too great a part in politics generally and particularly in the recent past.

It also said that the appointees of the ruling party should not be considered and the State to which the Governor is appointed should be consulted (ibid 4.6.19-21) even though it had not been done (ibid pr.4.6.22). To save the Governor’s office from subversion had become impossible.

The National Commission to Review the Working of the Constitution (NCRWC), also known as the Justice Manepalli Narayana Rao Venkatachaliah Commission, reiterated the Sarkaria Commission’s report in many ways, as did the Punchhi Commission on the requirements of a good Governor. These concepts were approved by the Supreme Court in Rameshwar Prasad & Ors vs Union of India & Anr. (2006) 2 SCC 1 at paras 46-62, 71.

The Punchhi Commission rightly summarises the role of Governors.

4.1.02 The Governor’s role thereafter became increasingly controversial with allegations of partiality and lack of objectivity in exercise of the discretionary powers. The part played by some Governors, particularly in recommending President’s Rule and in reserving State Bills for the consideration of the President, had evoked strong resentment. Frequent removals and transfers of Governors before the end of their tenure have also lowered the prestige of this office. Criticism has also been levelled that the Union Government utilises the Governors for its own political ends. Many Governors, looking forward to further office under the Union or active role in politics after their tenure, came to regard themselves as agents of the Union. The Governor thus became a major issue affecting the equation between the Centre and the States.

Modi’s Governors

Prime Minister Narendra Modi virtually changed all the Governors and Lieutenant Governors once he took over (See chart).

This included an ex-Chief Justice of India (P. Sathasivam), on what compulsions it is difficult to say. The three pre-Modi Governors were N.N. Vohra (Jammu & Kashmir), a much-favoured ex-Home Secretary; E.S.L. Narasimhan (Andhra Pradesh), who has had a tenure of over seven years in Andhra and also an Additional charge of Telangana from September 2, 2014; and S.C. Jamir (Odisha). Who can say that Kesri Nath Tripathi (West Bengal) and Kalyan Singh (Rajasthan) are not staunch supporters of the BJP? Tathagata Roy (Tripura) used social media to further the Hindutva cause, and Tripura is a “Left” bastion. Modi needed him and the others for tomorrow’s mischief. In the Union Territories, all seven Lt. Governors were appointed by Modi, including the defeated Chief Ministerial candidate for the BJP in Delhi, Kiran Bedi, in Puducherry. Anil Baijal in Delhi was a self-confessed BJP supporter. Lt. Governor Najeeb Jung acted on instructions. I could profile all of them but that would be a digression.

We have to find a new method of appointing Governors. Consultation with State governments might not be enough since many State governments are supportive of the government in power in Delhi. All designated Governors should be summoned before an all-party Rajya Sabha committee for confirmation. It does not matter if the ruling party has a majority in the Rajya Sabha. Each Governor will be thoroughly interrogated, investigated and exposed on suitability. This process should be inserted by amendments in the Constitution. Guidelines should be added in a new schedule. If this is done, we would be doing no more than what the Constitution-makers and various commissions and committees intended.

Some of Modi’s appointments proved to be a disgrace. Consider the case of the Meghalaya Governor, V. Shanmuganathan, who resigned on January 26, 2017, three days after a Shillong newspaper carried details of sexual harassment and 80 Raj Bhavan staff complained that he ran his official residence as a “young ladies’ club”. Why was he appointed? Because he was a pracharak of the RSS? In Arunachal Pradesh, Governor Jyoti Prasad Rajkhowa gave biased instructions to the legislature and then, on January 23, 2016, imposed President’s Rule, which was conveniently withdrawn by Modi’s government on February 19, 2016. What was done in Arunachal Pradesh is aspected in Justice Jagdish Singh Khehar’s cut-paste judgment, which is also an example of how not to write a judgment. Of course, before and after Rajkhowa, the Governor of Arunachal was Tathagata Roy, who ousted Chief Minister Kalikho Pul following a judgment of the Supreme Court. Pul later died by suicide.

Prime Minister Narendra Modi, Meghalaya Governor V. Shanmuganathan and Defence Minister Manohar Parrikar in New Delhi in July 2015. | Photo Credit: R. V. Moorthy

We move now to the Uttarakhand crises as manoeuvred by Governor K.K. Paul, former Commissioner of Police in Delhi and Governor of many States. The Congress-led United Progressive Alliance government made him the Governor of Meghalaya in 2013. After Modi won the general election in 2014, he became Governor of Manipur on September 16 of that year and on January 8, 2015, replaced Aziz Qureshi as Governor of Uttarakhand. By this time, he had lost his neutrality. This is what Chief Justice K.M. Joseph and V.K. Bisht of Uttarakhand had to say about the imposition of President’s Rule in Uttarakhand.

“Starting from 18.03.2016, the BJP had, even according to the learned Attorney General, ‘come out in the open with the 9 dissident Members of Congress’. When they write a letter to the President, we do not see how it can at all be taken at its face value. We do not think that it can be the material in the first place dehors any other objective material, for the imposition of President’s Rule. It would, if it has been taken into consideration, be entirely extraneous and irrelevant, as the imposition of President’s Rule would obviously be to the advantage of the BJP.” [Para 58]

In a similar strain, the bench also said:

“We may just summarize and state that the present case, which was set into motion with 18.03.2016 as day one and saw an unfolding of events culminating in the Proclamation being issued in less than 10 days on 27.03.2016, brings to the fore a situation, where Article 356 has been used contrary to the law laid down by the Apex Court.”[Para 96]

Apart from moving the CBI against Chief Minister Rawat under President’s Rule, this case ended vindictively against Chief Justice K.M. Joseph. He is a meticulous and brilliant judge–certainly a primary candidate for elevation to the Supreme Court. The collegium led by Chief Justice Khehar passed him over. Khehar did not want controversies with the government. In the 2017 Assembly elections in Goa and Manipur, the Congress was in the lead in both States as the single largest party but was manipulated out of consideration by BJP Governors. The BJP won in Uttarakhand,a corruption ridden State, in 2022 after it had used President’s Rule to destabilize the Rawat government in 2016. More recently, the non-BJP government in Madhya Pradesh (2020) and Maharashtra (2022) were ousted by money and muscle power with gubernatorial help.

Elections are India’s greatest strength. The electorate speaks with perception, mood swings, is influenced by canvassing, and sees to its own interest. But the cause of elections perishes if Governors and Union Ministers behave like Kipling’s “bandar log without the law”. Some Governors are guilty of violating constitutional principles. The most important of these is appointing a Chief Minister in a hung Assembly. They have no concern for democratic principles or the importance of a people’s mandate. We have to find a solution to the issue of the appointment of Governors. No less, of how they function.

Hyperactive Governors

The political style of Governors like Arif Mohammad Khan in Kerala has inaugurated a new style of governorship whereby the Governor has challenged his own government in the public domain as if the Governor were in the opposition. | Photo Credit: PTI

Virtually all Governors have been far from being politically neutral. However, the political style of Governors like Jagdeep Dhankhar in West Bengal and Arif Mohammad Khan in Kerala has inaugurated a new style of governorship whereby the Governor has challenged his own government in the public domain as if the Governor were in the opposition.

Under the Constitution, the Governor has direct control of the administration on the Centre’s behalf when President’s Rule is imposed under Article 356. Apart from this, the Governor has the right to information under Article 167 and can send messages to the House under Article 175. Beyond this and certain areas of discretionary power designated by the Constitution itself, the Governor has to act on the aid and advice of the Cabinet (Article 163).

Unlike the legislatures, which are directly elected, the Governor’s post is nominated and should respect the elected representatives in power. The method of communication needs to be discreet, dignified and non-confrontational.

Governor Dhankhar deemed it fit to summon officials including the Chief Secretary and Director General of Police to the Raj Bhavan and seek information directly about the government’s functioning, bypassing the Cabinet and Ministers. He travelled to various places on non-ceremonial occasions as if he was the ruler of the State. Called “hyperactive”, he had brushes with the Chief Minister, and the ruling Trinamool Congress (TMC) government accused him of being a BJP stooge under whom the Raj Bhavan served as an “RSS karyalaya”. His repeated tweets against his own government led to the government blocking his Twitter account. On not being invited to the Jadavpur University convocation, he declared that education in Bengal had been “politically compromised” and “poisoned”. In a public letter to Chief Minister Mamata Banerjee, he declared that her rule was “authoritarian and undemocratic” and would spell the “death knell” for democracy. All these actions suggest (a) a bias against the ruling government (b) direct takeover of the administration (c) public attacks on the government in power (d) a possible prelude to President’s Rule and (e) creating a constitutional breakdown himself. For all this he was rewarded with the Vice Presidency of the nation.

Kerala Governor Arif Mohammad Khan has made several attempts to directly remove various Vice Chancellors while the government wants to amend the law to rule out ex-officio Governors from Chancellorship. This is now before the Supreme Court. Governor Khan’s reaction was threatening as he accused the Left Democratic Front (LDF) government of bringing about “a collapse of constitutional machinery”. This is no empty threat. His combativeness is evident when he says: “I would urge them to go ahead, create more problems, barge into Raj Bhavan if you [have] the guts, attack me on the road.” He made personal attacks on Chief Minister Pinarayi Vijayan and commented on the alleged appointment of Communist Party of India (Marxist) cadre in the civil services. His stance is totally bereft of the dignity attached to the Governor’s office. In 1959, the Kerala Left Front government was brought down by President’s Rule following a breakdown in public order. Now Governor Khan threatens to do the same with public statements not worthy of his office.

Hyperactive governorship has changed the total discourse on gubernatorial powers as Governors publicly undermine the governments they serve and bring them down.

Need for change

Since the 1960s, Governors have acted in a partisan way. This was virtually admitted by the Bhagwan Sahay Committee (1970s), the Sarkaria Commission, the NCRWC, and the Punchhi Commission (2010). However, these indictments have had no effect on constitutional governance and practice.

We need to seriously consider a few proposals: (a) Governors’ appointment be screened by an all-party committee of the Rajya Sabha (b) Non-appointment of politicians (c) Guidelines on areas of discretionary power (such as selection of Chief Ministers, the dismissal of State governments and the imposition of President’s Rule) (d) A code of conduct for Governors scheduled by amendment in the Constitution itself. More needs to be examined. Present-day Governors are not the wise men that the CA envisaged them as. They have sabotaged constitutional principles and cannot be permitted to continue to do so.

Rajeev Dhavan is a Senior Advocate practising in the Supreme Court of India.

The Crux

• There is considerable controversy over the role of the Governor.
• After Indira Gandhi’s misuse of the post in the 1960s, the Bhagwan Sahay-led Report of the Committee of Governors (1971) expected Governors to act according to the Constitution but effectively proposed the case of the good Governor acting on better information from the Centre.
• Prime Minister Narendra Modi virtually changed all the Governors and Lieutenant Governors once he took over. Some of Modi’s appointments proved to be a disgrace.
• We have to find a new method of appointing Governors.