Weaponising the Governor against opposition-ruled States

Never has the role of the Governor been used to destabilise administrations like today.

Rajendra Prasad (centre) and Jawaharlal Nehru (right) acknowledging the cheers of members of the Constituent Assembly after the end of the session. The mode of appointment of Governors was an issue of keen debate in the Constituent Assembly. On the choice of Governors, Nehru said: “It probably would be desirable to have people from outside—eminent people, sometimes people who have not taken too great a part in politics.” | Photo Credit: The Hindu Archives

The year 2014 marked the beginning of a new phase in the deterioration of relations between Governors and State governments in India. The role of the Governor has always been contentious in Indian federalism and, in practice, often shrouded in controversies. But never has it been converted into a systemic and powerful weapon to destabilise the administration of opposition-ruled States as it has been today. In every opposition-ruled State, the Governor is at loggerheads with the State government on a daily basis. The confrontation between them is reaching the point of a constitutional crisis.

The metamorphosis of the Governor’s role from “aid and advice” to opposition is not surprising given that the current regime at the Centre, by its ideology, does not believe in the diversity of India and is determined to homogenise the country into one nation with one religion, culture, language, tax, election, and so on. It views the Indian federal system as an impediment to its onward march to the ideal of a homogenised nation.

The pace at which powers are being centralised is unprecedented. The least common denominator of the plethora of laws passed by Parliament has been the abridgement of States’ rights. The fiscal space of States is being systematically squeezed. And in the administrative sphere, the office of Governor has become the main source of mischief.

The parliamentary ministerial system

The position of Governor must be evaluated in the context of the parliamentary ministerial system that India has adopted. In its seminal verdict in Shamsher Singh vs State of Punjab (1974), the Supreme Court of India came to the following conclusion after an extensive survey of the debates in the Constituent Assembly: “[Jawaharlal] Nehru, [Sardar Vallabhbhai] Patel, [K.M.] Munshi, B.N. Rau, Alladi Krishnaswami Ayyar and, above all, Dr [B.R.] Ambedkar, who was Chairman of the Drafting Committee, spoke in one voice, with marginal variations… a Parliamentary-style quasi-federalism was accepted, rejecting the substance of a Presidential-style Executive.”

Dr Ambedkar was candid about the role of the President or the Governor: “His place in the administration is that of a ceremonial device on a seal by which the nation’s decisions are made known. …The President of the Indian Union will be generally bound by the advice of his Ministers. He can do nothing contrary to their advice nor can he do anything without their advice. The President of the United States can dismiss any Secretary at any time. The President of the Indian Union has no power to do so as long as his Ministers command a majority in Parliament.”

Nehru concurred: “…We want to emphasise the Ministerial character of the Government, that power really resided in the Ministry and in the Legislature and not in the President as such. At the same time we did not want to make the President just a mere figurehead like the French President. We did not give him any real power, but we have made his position one of great authority and dignity.”

According to Dr Ambedkar, the advantage of the parliamentary system is that “the assessment of responsibility of the executive is both daily and periodic. The daily assessment is done by members of the Parliament, through questions, resolutions, no-confidence motions, adjournment motions, and debate on address. Periodic assessment is done by the electorate at the time of the election….”

The reason we have laboured at length to drive home a point, which may look so obvious to some, is that moves are afoot behind the scenes at the national level to shift to a presidential system of government. This will go a long way in explaining why Governors in India today believe they have extra-constitutional powers.

Quasi-federal nature of the Constitution

In the Shamsher Singh judgment, the Supreme Court held that “it is proved beyond reasonable doubt that the President and, a fortiori, the Governor enjoys nothing more and nothing less than the status of constitutional head in a Cabinet-type government—a few exceptions and marginal reservations apart.”

The “few exceptions and marginal reservations” are more manifest in the provisions regarding the Governor, giving rise to delusions and confusion. Constitutional provisions regarding the Governor were borrowed from the Government of India Act of 1935 and modified to be incorporated into the Constitution of independent India.

The Governor was also seen as an important link between the Centre and the States. The Governor is appointed by the Centre without consulting the States and his or her tenure is at the mercy of the Centre. There are also certain discretionary powers spelled out in the Constitution. The Governor can also elicit information from and communicate suggestions to the State government. So many Governors keep on reminding and even issuing threats that they are not rubber stamps. This situation can be understood only in the context of the quasi-federal nature of the Constitution.

April 24, 1958: Prime Minister Jawaharlal Nehru being received at Trivandrum Airport by Chief Minister E.M.S. Namboodiripad (to his left). When States came to be ruled by opposition political parties, as in Kerala in 1957-59 and in several other States after 1967, conflicts began to surface. The Nehru government dismissed the Kerala government in 1959.  | Photo Credit: The Hindu Archives

The Constitution does not follow the principle of subsidiarity. In fact, a rather puzzling feature of the Constitution, until the 73rd and 74th constitutional amendments, was the absence of a third tier, despite the grama swaraj ideal being vital to the Gandhian thought. The legislative, fiscal, and administrative powers were concentrated at the Centre.

The above rather surprising constitutional outcome was the result of the tense and uncertain atmosphere in the country in the post-Partition period. Brajeshwar Prasad, a Congress member from Bihar, was speaking for a large body of opinion in the Constituent Assembly when he argued that “in the interests of all-India unity, and with a view to encouraging centripetal tendencies, it is necessary that the authority of the Government of India should be maintained intact over the provinces.”

The years since the adoption of the Constitution has seen further centralisation of powers and the role of Governor becoming increasingly controversial.

If the same party ruled at the Centre and the States, then little conflict would arise. But when States came to be ruled by opposition political parties as in Kerala in 1957-59 and in several States after 1967, conflicts surfaced. When in the post-1977 period the ruling party at the Centre itself began to rotate, the situation worsened, and Governors themselves were changed for political considerations.

To address the ensuing tensions in federal relations, three expert commissions looked into the matter closely, namely the Sarkaria Commission (1983), the National Commission to Review the Working of the Constitution (2000), and the Punchhi Commission (2007). With respect to the post of Governor, these Commissions reviewed the following key issues: the mode of appointment of the Governor, the discretionary powers of the Governor, and the advisory role of the Governor. Besides, the Supreme Court of India, through a number of constitutional judgments, has clarified the existing legal position. What we are attempting is to chart the broad consensus that exists today on the above issues which is being subverted in the most blatant manner by the Central government.

Qualifications and mode of appointment

The mode of appointment of Governors was an issue of keen debate in the Constituent Assembly before the current mode of nomination was adopted. It is worth quoting Nehru on what he said on the choice of Governors: “…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.”

However, the Punchhi Commission points out that the qualifications that Nehru attached to Governors were susceptible to wide interpretation by the party in power, resulting in the “politicisation of governorship and sometimes people unworthy of holding such high constitutional positions getting appointed. This has led to some parties demanding the abolition of the office itself and public demonstration against some Governors in some States.” Therefore, it recommended suitable constitutional amendments, such as enforceable qualifications and fixed tenure, to ensure the independence and dignity of the office. Nothing has been done in this regard, and the situation has only worsened.

Powers of the Governor

It is a settled matter that the Governor is the titular head of a State government and that, except in specific cases “required” “by and under the Constitution”, he/she shall function according to the advice of the elected Cabinet. This is borne by the outcome of the debates in the Constituent Assembly, analyses of the three commissions, and verdicts of the Supreme Court.

It is true that the Constitution mandates a Council of Ministers to aid and advise the Governor (Article 163(1)) and “the Ministers shall hold office during the pleasure of the Governor” (Article 164 (1)). But in between there is Article 163 (2), which states that the Governor may act in discretion in certain limited matters as provided in the Constitution. It is clear that in other general matters, the Governor is bound by the advice of the Council of Ministers.

Therefore, it is sheer delusion, as in the recent case of the Kerala Governor, to think he can withdraw pleasure in respect of a Minister and force the Chief Minister to dismiss him. The “pleasure” referred to in Article 164(1) is not individual satisfaction but used in a constitutional sense of the satisfaction of his Council of Ministers.

The Governor has the following discretionary powers: to give assent, withhold or refer a Bill for presidential assent under Article 200; appoint a Chief Minister under Article 164; dismiss a government that has lost confidence but refuses to quit; dissolve a House under Article 174; send the Governor’s report under Article 356; and carry out the Governor’s responsibility for certain regions such as tribal areas in north-eastern States. Guidelines on each of the above are given in the verdicts of the Supreme Court and the reports of the commissions.

Recent controversies relate to the discretion of the Governor with respect to Bills passed by the Assembly. In case assent is withheld, the Governor has to send it back to the legislature with his comments “as soon as possible”. Some governors have assumed that the clause gives them unlimited time to withhold their opinion.

The apex court verdict in the recent A.G. Perarivalan case [a convict in the Rajiv Gandhi assassination case who was released after much delay] is crystal clear: “The reference of the recommendation of the Tamil Nadu Cabinet by the Governor to the President of India two and a half years after such recommendation had been made is without any constitutional backing and is inimical to the scheme of our Constitution, whereby ‘the Governor is but a shorthand expression for the state government’ as observed by this Court.”

The Punchhi Commission has recommended major constitutional amendments to remove ambiguities with regard to the legislative powers of the Governor and his discretionary powers. Needless to say, they have not been acted upon and have instead been used to thwart the popular will of the people as reflected in State legislatures.

The chancellorship of universities

The issue of Governor as Chancellor of universities has also become controversial. Chancellorship is not a constitutional position, but one granted by laws governing universities passed by the Assembly. Therefore, the legislature has every right to remove the Governor from his position as Chancellor. But the Governor of Kerala has declared that he is not going to cooperate with such legislation.

The Punchhi Commission was of the opinion that “the Governor should not be burdened with positions and powers which are not envisaged by the Constitution, and which may expose the office to controversies or public criticism. Conferring statutory powers on the Governor by State legislatures have that potential and should be avoided. Making the Governor the Chancellor of universities and thereby conferring powers on him which may have had some relevance historically has ceased to be so with change of times and circumstances”.

The normal civility and decorum that characterised the interactions between a Governor and State governments have disappeared. In many States such as Kerala, Tamil Nadu, and Telangana, where the Bharatiya Janata Party is too weak to take on the State government, Governors have assumed the role of the opposition. At one level their antics are farcical, yet also deadly real. It does not bode well either for parliamentary democracy or for federalism.

T.M. Thomas Isaac is a central committee member of the Communist Party of India (Marxist) and the former Finance Minister of Kerala.

The Crux

• The years since the adoption of the Constitution has seen centralisation of powers and the role of Governor becoming increasingly controversial.
• Dr Ambedkar has said the role of the President or the Governor “in the administration is that of a ceremonial device on a seal by which the nation’s decisions are made known”.
• In the Shamsher Singh judgment, the Supreme Court held that “it is proved beyond reasonable doubt that the President and, a fortiori, the Governor enjoys nothing more and nothing less than the status of constitutional head in a Cabinet-type government—a few exceptions and marginal reservations apart.”
• To address the ensuing tensions in federal relations, three expert commissions looked into the matter closely, namely the Sarkaria Commission (1983), the National Commission to Review the Working of the Constitution (2000), and the Punchhi Commission (2007).
• Article 163 (2) states that the Governor may act in discretion in certain limited matters as provided in the Constitution. It is clear that in other general matters, the Governor is bound by the advice of the Council of Ministers.