“Raj Bhavan needs radical reforms” The Hindu editorial

The article discusses the challenges posed by the office of the Governors in the functioning of democratically elected state governments and the need for ushering in the era of requisite reforms vis-a-vis the Governor’s office.

For Prelims: Governor, Article 200, Article 201, Art 361, Punchhi Commission, President, Supreme Court, Money bill, Article 31A, Venkatachaliah Commission, Directive Principles of State Policy

For Mains: Role of Governor’s Powers related to passage of bills, Governor’s Challenges and Issues, Way Forward and Recommendations made by various committees Regarding Governor’s Role In India

Context

The post of State Governor plays a crucial role in our political system, acting as a vital link between the Centre and the States. It is seen as an essential element of our democratic governance that emphasizes cooperation. The position, powers, and discretionary authority of Governors in various states, have long been the topic of heated arguments in the political, constitutional, and legal arenas.

The recent disagreement between the Kerala Governor and the State Government over bill approval has gotten a lot of attention.

Background Of Governor’s Post

Before Independence:	Since the British Crown took over administration of India in 1858. Provincial Governors were Crown’s agents who worked under the authority of the Governor-General. The Government of India Act of 1935 required the governor to act on the advice of Ministers of a province’s legislature, but he retained particular responsibilities and discretionary power.
Post-Independence:	The governorship was heavily debated in the Constituent Assembly, which chose to keep it but reorienting its role from the British era. Currently, the Governor was intended to be the Constitutional Head of a state under India’s parliamentary and cabinet systems of governance.

What are Constitutional Provisions Related to the Governor?

• Article 153 says that there shall be a Governor for each state. One person can be appointed as Governor for two or more states.
  • The Governor is appointed by the President by warrant under his hand and seal and holds office under the pleasure of the President (Article 155 and 156).
• Article 161 states that the governor has the power to grant pardons, reprieves, etc.
  • The Supreme Court stated that the sovereign power of a Governor to pardon a prisoner is actually exercised in consensus with the State government and not by the Governor on his own.
  • S/he is bound by the advice of the state government.
• Article 163 states that there is a council of ministers headed by the Chief Minister to aid and advise the Governor in the exercise of his functions, except some conditions for discretion.
• Discretionary powers include:
  • Appointment of a chief minister when no party has a clear majority in the state legislative assembly
  • In times of no-confidence motions
  • In case of failure of constitutional machinery in the State (Article 356)

• The governor’s powers with respect to the passage of bills are defined by Article 200 and Article 201 of the Constitution. According to these articles, the governor has the following options when a bill is presented to him/her by the state legislature:
  • He/she may give assent to the bill, which means the bill becomes an act.
  • He/she may withhold assent to the bill, which means the bill is rejected.
  • He/she may return the bill (if it is not a money bill) to the state legislature with a message requesting reconsideration of the bill or some of its provisions.
  • If the bill is passed again by the state legislature with or without amendments, the governor cannot withhold assent to it.
  • He/she may reserve the bill for the consideration of the president, who may either assent to or withhold assent from the bill, or direct the governor to return the bill to the state legislature for reconsideration.
• Article 361 states that the Governor of a State, shall not be answerable to any court for the exercise and performance of the powers and duties.

What are the Issues Related to the Post of Governor in India?

• Appointment Challenge : Several Governors have been appointed by politicians and former bureaucrats linked with the ruling party. As a result, issues have been raised concerning the post’s impartiality and nonpartisanship. Furthermore, the norm of consulting the Chief Minister before appointing the Governor is frequently broken.
• From the Center’s Representative to the Center’s Agent: Governors are now referred to as ‘agents of the Centre‘ by critics. The National Commission to Review the Workings of the Constitution concluded in 2001 that the Governor owed his appointment and continuation to the Union. There are concerns that he will obey the Union Council of Ministers’ orders. This violates the neutral seat stipulated by the constitution and has resulted in partiality.
• Misuse of Discretionary Powers: The governor’s discretionary powers have been abused on several occasions.
  Critics, for example, have contended that the Governor’s recommendation for President’s Rule in a state is not necessarily based on ‘objective material,’ but rather on political whim or fancy.
• Governors were removed arbitrarily multiple times due to the lack of established justifications or procedures for removing governors.
• No Clear Distinction Between Constitutional and Statutory Role: The constitutional obligation to act on the recommendation of the council of ministers is not clearly delineated from the statutory authority as chancellor, resulting in several confrontations between the governor and the state administration.
• Constitutional Gaps: There are no guidelines in the Constitution for exercising the governor’s powers in the case of appointing a Chief Minister or dissolving the Assembly.
• Furthermore, there is no time limit imposed for a Governor to withhold assent to a Bill. As a result, conflict between the governor and the concerned state governments is possible.

What are the proposed constitutional adjustments proposed by various committees and the Supreme Court?

The Sarkaria Commission (1988):	The President should appoint the governor after consulting with the Chief Minister of the relevant state. The governor should be an eminent figure in some sector of public life who does not reside in the state where he is appointed. Except in exceptional and compelling circumstances, the governor should not be removed before the end of his tenure. The governor should serve as a link between the center and the state, rather than as a representative of the center. The governor’s discretionary powers should be used sparingly and wisely, and not to undermine the democratic process.
S.R. Bommai Judgment (1994):	The case put a stop to a hostile Central government’s arbitrary removal of state administrations. The ruling found that the Assembly floor is the only arena where the majority of the government of the day should be tested, not the Governor’s subjective opinion.
Venkatachaliah Commission (2002):	Governors should be appointed by a committee comprised of the prime minister, the home minister, the speaker of the Lok Sabha, and the chief minister of the relevant state. The governors’ five-year terms should be extended until they resign or are removed by the President for proven misbehavior or incapacity. Before taking any action to remove the governor, the central government should confer with the Chief Minister. The Governor should not meddle with the state’s day-to-day management. He should serve as the state government’s friend, philosopher, and advisor, and he should utilize his discretionary powers sparingly.
In Rameshwar Prasad v. Union of India (2006):	After concluding that the Governor abused his position by supporting Presidential rule in Bihar, the Supreme Court stated that the Governor’s driven and capricious behavior is subject to judicial review. However, whether Governors can claim immunity for extra­constitutional gestures and remarks was not a question in Rameshwar Prasad.
Punchhi Commission (2010):	The Commission suggested that the words “during the pleasure of the President” be deleted from the Constitution, implying that a governor can be replaced at the discretion of the central government. Instead, the group proposed that a governor be dismissed only by a resolution of the state legislature, which would give states more stability and autonomy.
BP Singhal vs Union of India (2010):	The Supreme Court ruled that the President has the authority to remove a Governor at any time and for any reason. This is due to Article 156(1) of the Indian Constitution, which states that the Governor serves “at the pleasure of the President.” The Court did, however, rule that the removal may not be based on arbitrary, capricious, or irrational grounds.
Nabam Rebia And Etc. vs Deputy Speaker And Ors (2016):	The Supreme Court noted B R Ambedkar’s statements in this case: “The Governor under the Constitution has no function which he can discharge by himself; no functions at all.” While he has no functions, he does have some duties to fulfill, and the House should keep this distinction in mind.” SC ruled that Article 163 of the Constitution does not give the Governor a general discretionary power to act against or without the advice of his Council of Ministers.
NCT of Delhi v. Union of India (2018):	Supreme Court emphasized the importance of identifying the “moral values of the Constitution” based on the concept of “constitutional culture.” It went on to say that “constitutional morality places responsibilities and duties on individuals who occupy constitutional institutions and offices” . Governors must determine if their acts are consistent with constitutional morality.
Kaushal Kishor v. State of Uttar Pradesh (2023):	The Court ruled that the freedom of expression of public officials could only be limited by “reasonable restrictions,” as provided by Article 19(2) of the Constitution.

Conclusion

The debate over the function of Governors in India highlights the importance of subtle reforms. While total elimination is considered unwise, ideas for transparent appointments, improved accountability, and reduced discretionary powers have been made. Striking a balance between state and central interests is critical for ensuring the Governor’s office operates effectively without jeopardizing democratic values.

Mains

Q. Whether the Supreme Court Judgment (July 2018) can settle the political tussle between the Lt.Governor and elected government of Delhi? Examine. (2018)

Q. Discuss the essential conditions for exercise of the legislative powers by the Governor. Discuss the legality of re-promulgation of ordinances by the Governor without placing them before the Legislature. (2022)

Q. Which of the following are the discretionary powers given to the Governor of a State? (2014)

1. Sending a report to the President of India for imposing the President’s rule
2. Appointing the Ministers
3. Reserving certain bills passed by the State Legislature for consideration of the President of India
4. Making the rules to conduct the business of the State Government

Select the correct answer using the code given below:

(a) 1 and 2 only 
(b) 1 and 3 only  
(c) 2, 3 and 4 only
(d) 1, 2, 3 and 4

Ans: (b)