Governor: A colonial relic

Successive governments at the Centre abused their power to plant their men in State capitals as Governors, wrecking the parliamentary system in the States. The results are there for all to see.

West Bengal Chief Minister Mamata Banerjee with Governor Jagdeep Dhankar.

On August 5, 1983, Karnataka Chief Minister Ramakrishna Hegde told a seminar on Centre-State relations which he had organised that “even Governors had become glorified servants of the Union”. This brought an angry denial from Governors. On August 17, Hegde promised the State Assembly that he would prove it to the hilt. He fulfilled the promise on September 22 by tabling in the Assembly an official document of the State—“White Paper on the Office of the Governor”.  

The Sarkaria Commission on Centre-State Relations, set up in 1983, published the full text of the White Paper as an Appendix. Its report revealed, however, that the document had no effect on it. The members of the commission were hand-picked. This writer was invited to give evidence. One of the members, S.R. Sen, got emotional halfway through my presentation and said that conditions in the country were as grave as they were at the time of Independence and the country’s partition. 

Prime Minister Indira Gandhi did not select these jokers to do justice to the States but to silence the recently elected non-Congress governments in some States. Justice R.S. Sarkaria was hand-picked for the job. He has given ample proof of his “qualifications” in the Supreme Court. She chose him to head a commission of inquiry after toppling the Dravida Munnetra Kazhagam (DMK) government of M. Karunanidhi in Tamil Nadu in 1976. Karunanidhi had opposed the imposition of the Emergency. Sarkaria was chosen to preside over the Press Council of India. He lived up to his bosses’ expectations by opposing the demand for a Freedom of Information Act. 

Not surprisingly, the Sarkaria Commission’s report was a damp squib. Its research was shoddy, especially on the crucial question of the constitutional status and functions of Governors. Two grave omissions in particular marred the report on an important subject.  

On November 26, 1970, the President had appointed a Committee of Governors consisting of Bhagwan Sahay,,B..Gopala Reddi,,V. Viswanathan, S.S. Dhawan and Ali Yavar Jung “to study and formulate norms and conventions governing the role of Governors under the Constitution”. Its report submitted in 1971 is not even mentioned in the report, let alone discussed. 

Some cases are discussed in the chapter on Governors, but the Supreme Court’s definitive ruling in Dr.Raghukul Tilak’s case on May 4, 1979, is not even cited. The report failed to appreciate correctly the very basic question of the status and role of the Governor. It says: “Being the holder of an independent constitutional office, the Governor is not a subordinate or a subservient agent of the Union government.” This is correct. But it is diluted in the very next sentence: “However, in respect of those specified functions which the Constitution requires him to perform as agent of the Union, he is accountable to the President.” 

 

Not and agent of the Union

This is rong. The Constitution does not require the Governor to act as an “agent of the Union” in any respect whatsoever. As the report of the Committee of Governors points out, “Under the Constitution, just as the State is a unit of the Federation and exercises its executive powers and functions through a Council of Ministers responsible to the Legislature, and none else, the Governor, as Head of the State, has his functions laid down in the Constitution itself, and is in no sense an agent of the President. In addition, his oath of office under Article 159 requires him to ‘preserve, protect and defend the Constitution and the law’ . Even in a situation where the g overnment of a State is taken ov e r by the President under A rticle 356, the Governor does not by virtue of anything contained in the Constitution become an ag e nt of the President.”. The President assumes to himself all the powers vested in and exercised by the Governor. He may entrust to the Governor some of the powers by an order in writing. That does not make him an agent.  

In Dr. Raghukul Tilak’s case, the Supreme Court observed: “It is no doubt true that the Governor is appointed by the President which means in effect and substance the Government of India, but that is only an employee or servant of the Government of India. Every person appointed by the President is not necessarily an employee of the Government of India. So also it is not material that the Governor holds office during the pleasure of the President. It is a constitutional provision for determination of the term of office of the Governor and it does not make the Government of India an employer of the Governor.  

“His office is not subordinate or subservient to the Government of India. He is not amenable to the directions of the Government of India,nor is he accountable to them for the manner in which he carried out his functions and ties. He is an independent constitutional office which is not subject to the control of the Go ve rnment of India. He is constitutionally the Head of the State in whom is vested the executive power of the State and without whose assent there can be no legislation in exercise of the legislative power of the State.” (Hargovind Pant vs. Dr. Raghukul Tilak, AIR 1979 SC 709).  

The Sarkaria Commission’s report repeats the reference to the Governor “as an agent of the Union Government in a few specific areas during normal times (eg. Article 239(2)) of the Constitution”. But Article 239(2) only speaks of the Governor being appointed as the administrator of an adjoining Union Territory. In that case he does not act as Governor at all but as an administrator. The reference to Article 239(2) is irrelevant in any discussion of the status of the Governor. Nor is it right to call the Governor an agent “in a number of areas during abnormal situations” when President’s rule is imposed under Article. 356(1). The remarks of the Committee of Governors and the Supreme Court judgment totally refute the suggestion of the Governor being an agent of the Union. The Sarkaria Commission report says: “It has been suggested to us that effective constitutional safeguards should be provided to ensure that the office of the Governor is free from controversy” and adds: “While we agree that effective safeguards for this purpose should be evolved, we are of the view that not all these safeguards can be written into the Constitution.” The Supreme Court judgment in the Raghukul Tilak case said: “His [Governor’s] office is not subordinate or subservient to the Government of India. He is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carried out his functions and duties.. He is an independent constitutional office which is not subject to the control of the Go ve rnment of India. He is constitutionally the Head of the State in whom is vested the executive power of the State and without whose assent there can be no legislation in exercise of the legislative power of the State.”  

In consultation with Chief Minister

The only safeguard that the Sarkaria Commission report recommends for incorporation in the Constitution is that of consultation with the Chief Minister in the selection of the person to be appointed as Governor. The report recommends that “the procedure of consultation should be prescribed in the Constitution itself by suitably amending Article 155 ”. That provision as it exists today simply says that the Governor “shall be appointed by the President by warrant under his hand and seal”. 

On May 30 and 31, 1949, three of the founding fathers of the Constitution, Pandit Jawaharlal Nehru, Shri T.T. Krishnamachari and Sir Alladi Krishnaswamy Ayyar, declared emphatically that Governors should be appointed only after consultation with the States. The practice was followed until 1969 and then abandoned. 

As for security of tenure, the report makes a feeble suggestion on safeguards against arbitrary dismissal. The Governor “should be informally apprised of the grounds of the proposed action and afforded a reasonable opportunity of showing cause against it”. However a Governor, like any other functionary, has a right to go to court against arbitrary dismissal even today. It has not proved to be a strong check. There was one specific recommendation, but it was couched in the language of courtiers. The report also says “it is desirable that a politician from the ruling party at the Union is not appointed as Governor of a State which is being run by some other party or a combination of parties”. A fortnight after publication of the report, Governors were appointed in five States in direct violation of the commission’s recommendations. 

To be fair, all political parties flouted this recommendation—the Congress, the Janata Party, the Janata Dal, and the Bharatiya Janata Party (BJP). But the BJP under Narendra Modi has gone miles ahead. It deliberately appointed as Governors of non-BJP States men of no credentials except violent opposition to non-BJP governments in the States and a capacity for vituperative verbosity. 

Mumbai, the capital of Maharashtra, is a cosmopolitan and cultured city. Modi appointed as Governor of Maharashtra a person who will arouse derision in any drawing room in the city. Bhagat Singh Koshyari has made it his business to oppose the coalition government led by Uddhav Thackeray on every conceivable matter and occasion and some inconceivable ones, too. West Bengal Chief Minister Mamata Banerjee has had to face in succession two loud-mouthed, ill-mannered Governors. None, however, can beat the infamous former Governor of Tripura, Tathagata Roy, biographer of Shyama Prasad Mookerjee. Two successive Governors of Jammu and Kashmir have earned notoriety for conspicuous hostility to Kashmir’s aspirations, its culture and its political style. Chief Minister Adityanath of Uttar Pradesh roams freely, unchecked by the Governor or by his master, Narendra Modi. 

This is the state of a vital component of India’s constitutional machine, only 75 years after the Constitution came into force. The importance of the office is not commonly realised. Initially, it was decided to make it an elective office. Fortunately, the idea was dropped. It would have resulted in two elected offices complicit with each other. The alternative was nomination. But on December 30, 1948, Dr B.R. Ambedkar made it plain to the Constituent Assembly of India that “the position of the Governor is exactly the same as the position of the President”. He would be appointed by the President on the advice of the Prime Minister. 

On May 3, 1949, Jawaharlal Nehru explained to the Constituent Assembly: “I think it would be infinitely better if he (the Governor) was not so intimately connected with the local politics of the province, with the factions in the provinces. And, as has been stated by Mr Munshi, would it not be better to have a more detached figure, obviously a figure that is acceptable to the province, otherwise he could not function there? He must be acceptable to the province, he 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. He may be sometimes, possibly, a man from that province itself. We do not rule it out. 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 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.” It did not take long for the Centre to abuse this power and plant its men in State capitals to do its bidding. The parliamentary system in the States was wrecked. It envisages an impartial head of State. Not a single political party followed the rules. Decline and abuse began in 1950 and the results are there for all to see. Now, in 2021, constitutional reform is necessary. It should promise a fixed term and a mechanism for the Governor’s removal.