Governor and Assent to the Bills

• The Governor’s appointment, his powers and everything related to the office of Governor have been discussed under Article 153 to Article 162 of the Indian Constitution.
• The role of the Governor is quite similar to that of the President of India. The Governor performs the same duties as of President, but for the State. Governor stands as executive head of a State and the working remains the same as of the office of President of India. Under the Constitution of India, the governing machinery is the same as that of the Central Government.
• It is stated that the Governor has a dual role.
  • He is the constitutional head of the state, bound by the advice of his council of ministers.
  • He functions as a vital link between the Union Government and the State Government.

Constitutional Provisions related to Governor

• The appointment and powers of government can be derived from Part VI of the Indian constitution. 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 acts in 'Dual Capacity' as the Constitutional head of the state and as the representative.
• He is the part of federal system of Indian polity and acts as a bridge between union and state governments.
• Article 157 and Article 158 of the Constitution of India specify eligibility requirements for the post of governor. They are as follows:
• A governor must:
  1. Be a citizen of Indi
  2. Be at least 35 years of age.
  3. Not be a member of the either house of the parliament or house of the state legislature.
  4. Not hold any office of profit.
• The term of governor's office is normally 5 years but it can be terminated earlier by:
  1. Dismissal by the president on the advice of the council of minister headed by the prime minister of the country.
  2. Dismissal of governors without a valid reason is not permitted. However, it is the duty of the President to dismiss a governor whose acts are upheld by courts as unconstitutional and malafide.
  3. Resignation by the governor.

Historical Background

• The Governors under the Government of India Act 1935 were “by the Raj, of the Raj and for the Raj”. The constituent assembly wanted elected governors as proposed by a sub-committee of B.G. Kher, K.N. Katju and P. Subbarayan.
• The apprehension of the clash between powers of Governor and Chief minister led to the system of appointed Governor in the state.
• The draft constitution of 1948 was ambivalent – the drafting committee leaving it to the constituent assembly to decide whether governors should be elected or nominated.

Governor- Issues and Suggested Reforms

What are the recent controversies associated with the office of Governor?

What is the history and rationale behind the office of Governor?

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

1. Affiliation Based Appointment- Politicians and former bureaucrats affiliated with the ruling party have been appointed in several instances as Governors. This has led to questions about the post’s impartiality and non-partisanship.

2. Arbitrary Removal of Governors- There are no written grounds or procedures for removing governors. This leads to arbitrary removals especially when there is change of political power at the Union Govt. level.

3. From Centre’s Representative to Centre’s Agent- The governors have become the ‘agents of the Centre’ as they are appointed and removed by the Central Government.

4. Governor recommending President’s Rule- The discretionary power of governor recommending president’s rule on account of the failure of constitutional machinery in the state has has not always been based on ‘objective material’. Political partisanship, whims and fancies have also played their part.

5. No Clear Distinction Between Constitutional and Statutory Role- The constitutional mandate of the Governor to act on advice of the council of ministers is not clearly distinguished from his statutory authority as chancellor. This has resulted in many conflicts between the governor and the state government. For ex- The was a recent appointment of a Vice Chancellor in a university by the Kerala Governor, bypassing government nominations has caused a conflict.

6. Misuse of Discretionary power of appointment of CM- The Office of governor has been accused of playing a partisan role in the appointment of CM in cases where a single party lacks the majority.

7. Convening and Dissolution of Assembly- The Office of Governor has been associated with the politics of delay in the convening and dissolution of state legislative assembly.

8. Delay in giving assent to the Bills- There is no time limit set for how long a Governor can withhold assent to a Bill. This has been misuded by the Office of the Governor to withhold assents to Bills passed by the State legislative Assemblies.

What about the Governor’s role in giving assent to Bills?

• Article 200- When a Bill passed by the legislature of a State is presented to the Governor, the Governor has 4 options.

• Suspensive veto- The return of any Bill to State Legislature for reconsideration is also to be done based on ministerial advice.
• If the bill returned by the Governor for reconsideration is passed by the House again with or without amendments and presented to the Governor, the Governor must assent.
• Reserved for President- Governor may exercise their discretion, where they feel that the provisions of the Bill will contravene the provisions of the Constitution.
  • Bills reducing the power of the High Court
  • Bills on concurrent list that are repulsive to a Union law based on ministerial advice.
• Governor will not have any further role when the bill is reserved for President’s consideration.

• Money Bill- Governor cannot return the Bill for reconsideration, and gives his/her assent as it is introduced in the State Legislature with his/her previous permission.
• Private Member’s Bill- The Council of Ministers may advise the Governor to withhold the assent to the Bill.
• Power shift- If the incumbent government whose Bill has been passed by the legislature falls or resigns before it is assented to by the Governor, the new Council may advise the Governor to withhold assent.
• Pocket veto- The Constitution does not lay down any time limit within which the Governor is required to make a decision.

What are the Constitutional Reforms suggested by Various Committees and Supreme Court?

Various Rulings of the Supreme Court arranged in Chrnological Order-

1. Shamsher Singh vs. State of Punjab(1974)- The Supreme Court held that the Governor is bound to act in accordance with the aid and advice of the Council of Ministers headed by the Chief Minister. Article 154(1) makes it clear that the executive power of the State is vested in the Governor, but shall be exercised by him in accordance with the Constitution.

2. SR Bommai vs. Union of India (1994)- The case was concerned with the use of Article 356 and the Governor’s power to dismiss a State Government. The Supreme Court ruled that whether the State Government has the majority should be tested on the floor of the House. It shouldn’t be based on the subjective assessment of the Governor.

3. Rameshwar Prasad vs. Union of India (2006)- The Supreme Court held the Governor’s decision to dissolve the Assembly as unconstitutional and mala fide. Motivated and whimsical conduct of the Governor in recommending president’s rule is amenable to judicial review.

4. BP Singhal vs Union of India (2010)- The SC held that the removal of Governor cannot be based on arbitrary, capricious or unreasonable grounds.

5. Nabam Rebia vs. Deputy Speaker (2016)- The Governor had went against the advice of the State Cabinet and called the session of the Legislative Assembly at an earlier date (against the recommended date). The SC confirmed that the Governor does not enjoy broad discretionary powers and is always subject to Constitutional standards. The Court concluded that the Governor’s discretion did not extend to the powers conferred under Article 174 (Article 174 is related to the Sessions of the State Legislature, prorogation and dissolution). Hence, the Governor could not summon the House, determine its legislative agenda or address the legislative assembly without consultation.

Recommendations of Various Commissions in Chronological Order

1. The Administrative Reforms Commission (1969)- The Commission recommended that non-partisan persons having long experience in public life and administration should be appointed as the Governors of a State.

2. Sarkaria Commission (1988)-

(a) Appointment of Governor-
(i) The Governor should be appointed after consultations with the Chief Minister of the State
(ii) The Governor should be eminent in some walk of life and from outside the State
(iii) The person should be a detached figure without intense political links, or should not have taken part in politics in the recent past
(iv) The person should not be a member of the ruling party

(b) Removal of Governor-
(i) The Governor should be removed before the end of the term (5 years) only on the grounds if doubts are raised about his morality, dignity, constitutional propriety etc.
(ii) In the process of removal before the end of the term, the State Government may be informed and consulted

(c) Use of Article 356-
This article should be used very sparingly and as a matter of last resort. It can be invoked only in the event of political crisis, internal subversion, physical breakdown, and non-compliance with the Constitutional directives of the Centre.

3. National Commission to Review the Working of the Constitution (NCRWC), 2002- The Governor should be appointed by a Committee comprising the Prime Minister, Home Minister, Speaker of the Lok Sabha, and the Chief Minister of the State concerned.

4. The Second Administrative Reforms Commission (ARC), 2008- The Inter-State Council needs to come up with some guidelines for governors to follow when they are using their discretionary power.

5. Punchhi Commission (2010)–
(a) It proposed giving Governors a fixed term of 5 years and removing them through an impeachment process (similar to that of the President) by the State Legislature. The doctrine of pleasure (for removal of Governors) should be deleted
(b) It reiterated the recommendation of the Sarkaria Commission regarding appointment of Governors. The person shouldn’t be active in politics
(c) The convention of making the Governors as chancellors of universities should be done away with
(d) Article 355 and 356 should be amended to allow the Union Government to bring specific troubled areas under its rule for a limited period, instead of the whole State.

Way Forward

• For the smooth functioning of a democratic government, it is equally important that the governor must act judiciously, impartially and efficiently while exercising his discretion and personal judgement.
• In the current political climate examples being Goa (2017), Meghalaya (2018), Manipur (2017) and Karnataka (2018), point to the need to ensure proper checks and balances to streamline the functioning of this office.
• In order to enable the governor to successfully discharge his functions under the constitution, an agreed 'Code of Conduct' approved by the state governments, the central government, the parliament, and the state legislatures should be evolved.
• 'Code of Conduct' should lay down certain 'norms and principles' which should guide the exercise of the governor's 'discretion' and his powers which he is entitled to use and exercise on his personal judgement.
• The 'procedure for appointment of governors should be clearly laid down' and conditions of appointment must also be laid down and must assure a fixed tenure for the governor so that the governor is not under the constant threat of removal by the central government.
• It is necessary to invest the office of the Governor with the requisite independence of action and to rid them of the bane of ‘instructions’ from the Central Government.
• It is suggested that the exercise of 'discretionary powers' by the Governors should be 'guided by the healthy and democratic conventions’.
• The Bommai verdict allows the Supreme Court to investigate claims of malafide in the Governor’s report, a similar extension to cover malafide in the invitation process could be a potential solution.
• The role of governor is indispensable for the successful working of the constitutional democracy. He must refrain from aligning himself to any political ideology. The virtue of impartiality must be withheld to ensure a free and fair election in a democracy.