Once again, state Governors in India are being pejoratively dubbed “agents of the Centre.”
From Kashmir to Kanyakumari, in the last five years, Raj Bhawan (Governor’s residence in each state) has been engaged in a running feud with all opposition-led state governments and even had differences with civil society activists.
Greater politicisation of Governor’s office?
The current Governor of West Bengal and former Bharatiya Janata Party (BJP) parliamentarian, Jagdeep Dhankar, has had a turbulent relationship with Chief Minister, Mamata Banerjee, since he assumed office in July 2019. His feud with Jadavpur University students during the 2019 annual convocation painted him in bad light around the state.
Puducherry Lieutenant Governor Kiran Bedi’s differences with Chief Minister, V Narayanasamy, came to a head when the latter wrote to President Ram Nath Kovind, stating that the “autocratic” LG should be removed.
The manner in which current Maharashtra Governor, BS Koshiyari, administered the oath to BJP Maharashtra supremo Devendra Fadnavis and Nationalist Congress Party’s (NCP) Ajit Pawar early morning without ascertaining that the two had the numbers to form a government raised many concerns, further politicising the office of Governor.
Ironically, the change in the attitude of Governors when the ruling party at the centre comes to power in a state is debatable as there is almost negligible evidence of gubernatorial feud with Centre-ruling political parties in states. While former Uttar Pradesh Governor, Ram Naik, had issues with the Samajwadi Party government, once current Chief Minister, Yogi Adityanath, took over in 2017, Naik turned into a mentor for BJP lawmakers.
Contrary to this trend, Kerala Governor, Arif Mohammed Khan, recently backed the farmers’ stir and also accused the BJP-led National Democratic Alliance (NDA) government at the Centre of trying to sabotage the Kerala government’s flagship projects. Last year, he had expressed his difference over the government’s stand against the Citizenship Amendment Act (CAA).
But it is to be pointed out that Raj Bhawan getting into the political sphere, exercising its freedom of speech, leads to the politicisation of the Governor’s office, which in turn, weakens its constitutional role.
Since the Governors are appointed by the President – clearly at the behest of the party in power at the Centre – and continue in office “during the pleasure of the President” as per Article 155 and 156 of the Indian constitution, they have nothing to worry as long as they toe the Centre’s line. However, several NDA Governors have let down the high office they occupy.
Who is a Governor?
Governor is the constitutional head of the state and the chief executive head of the state whose powers are enshrined in Part VI of the constitution.
He is popularly known to act as an agent of the central government. However, a five-judge constitution bench headed by the then Chief Justice of India, K.G. Balakrishnan, in the wake of the removal of the Governors of Uttar Pradesh, Gujarat, Haryana and Goa in 2004 had said in 2010:
“[…] the doctrine of pleasure [under Article 156 of the Constitution] is not a licence to act with unfettered discretion to act arbitrarily, whimsically, or capriciously. It does not dispense with the need for a cause for withdrawal of the pleasure. The withdrawal of pleasure cannot be at the sweet will, whim and fancy of the Authority, but can only be for valid reasons.”
From the early days of Indian democracy till the 1980s, the same political party used to be in power at both the union and the state levels. But this has changed with time. Now different political parties, some national and others regional, are in power in States. Further, one single party may not be in power either in the Centre or in a State. Different parties with distinct ideologies may constitute a front to form a government.
On account of the emergence of coalition politics in the late 1970s, many regional parties have started sharing power at the Centre. Many a time, there may not even be a common programme, manifesto or agenda among the parties sharing power. As a result, the agenda or ideology of a political party in power in the State may not be in sync with those of the political parties in the ruling coalition at the Centre.
Further, the compulsions of coalition politics may also require the parties sharing power to frequently change their policies and agendas. In such a scenario of myriad policies, ideologies, agendas in the shifting sands of political coalitions, there is no question of the Union government having Governors who are in sync with its mandate and policies.
Notably, Governors are not expected or required to implement the policies of the government or popular mandates. Their constitutional role is clearly defined and bears very limited political overtones.
When and how should a Governor be removed?
In 2010, the Balakrishnan-led constitution bench had said that Governor “should owe their allegiance and loyalty to the Constitution of India and not to any political party.”
“We, therefore, reject the contention of the respondents that Governors should be in “sync” with the policies of the Union government or should subscribe to the ideology of the party in power at the Centre. As the Governor is neither the employee nor the agent of the Union government, we also reject the contention that a Governor can be removed if the Union government or party in power loses ‘confidence’ in him,” the bench had further stated.
The bench also noted that persons of calibre, experience, and distinction are chosen to fill these posts “not to enable them to earn their livelihood but to serve society.”
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“It is wrong to assume that such persons having been chosen on account of their stature, maturity and experience will be demoralised or be in constant fear of removal unless there is a security of tenure,” it had said.
Therefore, the Governor’s office has a dual role and forms an important part of the state executive as well as in maintaining the unity of the country and integrity of the constitution. In this vein, the Sarkaria Commission had described the Governor as “a Constitutional sentinel and a vital link between the Union and the State.”
In famous SR Bommai v. Union of India (1994) case, the Supreme Court had said:
“The office of the Governor is intended to ensure protection and sustenance of the constitutional process of the working of the Constitution by the elected executive.”
Given the vagueness surrounding the process of appointing and removing the Governor, doubts have been raised about the ‘legal nature’ of his office.
According to B.R. Ambedkar, “He is the representative not of a party; he is the representative of the people as a whole of the State. It is in the name of the people that he carries on the administration.”
In Hargovind Pant v. Raghukul Tilak (1979), the Supreme Court affirmed that the “office of the Governor was not subordinate or subservient to the Government of India.”
In the contemporary constitutional landscape, the Governor should be expected to advance the cause of ‘cooperative federalism’ and ‘democracy’, which form a part of the basic structure of the Constitution.
Power to withhold assent
The recent incidents of the Kerala Governor using his office to criticize the state government and defend the central government on certain issues have called into question the role of the Governor in a federal setup such as India’s. The Governor’s refusal to convene a session is tantamount to an infringement upon the powers of the legislature and the elected government and an abuse of his authority as a nominal head under the Constitution.
The power to withhold assent appears to be a wide and unguided power because the Governor is an appointee of the President (Central government). He is not elected by the people of the State or by their representatives.
In such a situation, the legitimacy of this power, which empowers him to undo the will of the Legislature by just declaring that he is withholding his assent, is open to question. If, on the other hand, for any reason, the power to withhold assent is treated as a matter within the discretion of the Governor, the position would be a totally unedifying one.
In the absence of any guidance provided by the Constitution in which cases this power can be exercised and given the fact that no court is entitled to go into the justification of such withholding, conferment of such power is bound to be inherently arbitrary and discriminatory.
In the Nabam Rebia v. Deputy Speaker (2016) case, a Constitution Bench of the Supreme Court had held that a Governor is bound to convene a meeting of the Assembly for a floor test on the recommendation of the Cabinet. It held that the Governor cannot employ their discretion in this matter and should strictly abide by the aid and advice of the Cabinet.
Most recently, in the Government of NCT of Delhi v. Union of India (2018), then Chief Justice of India, Dipak Misra, clarified that democracy and federalism are firmly imbibed in India’s constitutional ethos while reiterating that democracy requires the constant affirmation of constitutional morality.
Challenges to the role
Despite his unique constitutional positioning, the Governor is sometimes not seen as willing or able to discharge his functions as judiciously, impartially and efficiently as envisaged by the first Administrative Reforms Commission.
A perusal of the reports of the Sarkaria, Punchhi and Venkatachaliah Commissions reveals that the independence and dignity of the gubernatorial office are invariably undermined by: the appointment of persons not suited to the post; the lack of security of tenure; and the lack of an appropriate removal mechanism with no reasonable post-retirement benefits and limitations on post-retirement political ingratiation.
Consequently, the promise of the institution remains as underwhelming as ever while the perils continue to multiply.
India has a parliamentary democracy with a responsible form of government. In such a form of government, the Governor functions only as a Constitutional or formal head of the State and their powers cannot be enlarged at the cost of the Council of Ministers, who are the real executive, elected by the people of a state.
Views expressed are the author’s own.
is a New Delhi-based public and private policy advisor. He is a graduate in political science.
