Appointment of Governors in Multi-Party Democracy  

Introduction 

The Constitution of India is federal in form but also possesses certain unitary characteristics1. Strengthening the federal system is necessary for meeting the requirements of the people who are governed by different State Governments and also for preserving the unity of India. Therefore, Centre-State relations, which also mean the arrangements between the Union Government and the States in regard to their powers, functions performed by them and their responsibilities, have always been a crucial issue. Along with significant socio-economic and political changes occurring in the post-independence period, Centre-State relations have also been subjected to some major changes. The period since 1991, has seen country grow in many aspects which witnessed a paradigm shift in the economic strategy from planned development to a market- oriented one, the emergence of coalition form of governments, emergence of regional parties as kingmakers in the centre etc. These changes have put up new issues and challenges for governance of our country. One of the main challenges which have emerged as to the functioning of the democracy and quasi-federal system is the appointment of Governors in our country.

The Appointment of Governors  

The Governor of a state is appointed by the President of India by warrant under his hand and seal as per the provisions of the constitution.2 Though the literal interpretation of Article 155 of the constitution implies that the governor is appointed by the President but the same is not true. Article 74 of the constitution provides that there shall be a council of ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.3 Article 155 when read with Article 74 make it amply clear that it is actually the Council of Ministers who decide who is to be nominated for the post of Governor. The only qualification mentioned in the constitution, for the appointment of Governor is that he should be a citizen of India and must have completed the age of 35 years.4

It is pertinent to recall here that during the deliberations of the constituent assembly, some other modes of appointment of a Governor were also considered. The idea of election was ruled out because it was felt that the co-existence of a Governor selected by the people and a chief minister responsible to the legislature might lead to friction and consequent weakness in administration. It was a result of mutual consent that the present provisions regarding appointment of a governor were accepted.5

The Constitution of India does not prescribe any mechanism for defining the suitability and evaluation of the persons considered to be fit for the appointment as Governor. However, the view of the constituent assembly in unison was that the person who is to be appointed as the Governor must be of such calibre whose administrative wisdom and intelligence cannot be questioned. The person should be impartial and for that he must not have been a part of the state politics. The views of Pandit Jawahar Lal Nehru are worth mentioning here as he was in favour of a governor who is more of a detached figure in state politics.6 The intention of the framers of the constitution was that they wanted an impartial person to adorn this gubernatorial office.

Since India became a Republic, two conventions have been followed by the parties at centre for the appointments of Governors generally:

  1. The Governor should belong to a state other than the state in which he is being appointed.
  2. The appointment of Governor requires consultation between the Centre and the States so as to maintain the utility and dignity of this office.

Sadly, the above conventions were diluted in application more and more after the supremacy of the Congress party ended in the Parliament. Governors were appointed keeping political expediency in mind. Even if the Governor was not of a state to which he belonged, he played part in the politics of the state if not actively than passively on the directions of the central government. The Central government considered the advice of the state governments only when the party both in the centre and the state were the same. Otherwise, Governors were more or less imposed on state governments. A recent example of this would be Mizoram, which has become the dumping ground of Governors much against its wishes.7

Constitutional Position of the Governor 

The constitutional position of the Governor in relation to the legislature and administration is the same as that of a Union President.8 Governor is said to be the formal head of the state and exercises all its power and functions at the aid and advice of the Council of Ministers. In the case of Ram Jawaya Kapur v. State of Punjab9 the SC said:

“The Governor occupies the position of the head of the executive in the State but it is virtually the council of Ministers in each State that carries on the executive Government. In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet, “a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part.” 

In State of Karnataka v. Union of India [1977 (4) SCC 608], a seven-Judge Bench of S.C Court held:

“The Governor of a State is appointed by the President and holds office at his pleasure. Only in some matters he has got a discretionary power but in all others the State administration is carried on by him or in his name by or with the aid and advice of the Ministers. Every action, even of an individual Minister, is the action of the whole Council and is governed by the theory of joint and collective responsibility. But the Governor is there, as the head of the State, the Executive and the Legislature, to report to  the  Centre  about  the  administration  of  the  State.”

It is thus evident that a Governor has a dual role India. The first is that of a constitutional Head  of the State, bound by the advice of his Council of Ministers. The second is to function as a vital link between the Union Government and the State Government. In certain special/emergent situations, he may also act as a special representative of the Union Government. He is required to discharge the functions related to his different roles harmoniously, assessing the scope and ambit of each role properly.10 He is neither an employee of the Union Government, nor the agent of the party in power nor required to act under the dictates of political parties.11 There may be occasions when he may have to be an impartial or neutral Umpire where the views of the Union Government and State Governments are in conflict.12

Despite these judgments by the apex court, the Governor has acted as the puppet or agent of the centre in the state disregarding constitutional ethics. One case which is worth quoting here is the implementation of the President’s rule in Bihar after the General Assembly Elections in 2005 by the then Governor Buta Singh. The Supreme Court had to step in and declare that the action of the Governor was legally untenable and unconstitutional.13

Political Governors and the Implications on Federalism

 The issue of appointment and removal of Governor is the sole right of the Union government and the states have no voice on the issue. According to the Indian Constitution the office of the Governor is held only during the „pleasure of the President‟.14 This Pleasure Doctrine has its origins in the English law. Black’s Dictionary defines „Pleasure Appointment‟ as the assignment of someone to employment that can be taken away at any time, with no requirement for notice or hearing.15 When a person holds office during the pleasure of the crown, his appointment can be terminated at any time without assigning any cause.16 Constitution of India refers to the offices held during the pleasure of the President and also appointment to which the Doctrine of Pleasure is not applicable. The office of the Governor, Attorney general and Union ministers are held during the pleasure of the President whereas Judges of the Supreme Court do not hold office during the pleasure of the President. Democracy cannot survive if unelected State Governors play games with post-election scenarios to please the party in power at the Centre that appointed them to office. The use of Pleasure Doctrine by any government at centre has caused much damage to the office of the governor. The fear of being removed by the centre makes the Governors subservient to the wishes of the Central government in totality. They obey the wishes of their master without any regard for the dignity of their office. The number of times the position of the governor has been misused against the state government is not few in number. However, some of the instances are worth quoting:-

The first United Front government, comprising Jyoti Basu’s CPI(M), CPI and the Bangla Congress was formed in March 1967. The government in West Bengal was dismissed at the behest of the Central government within eight months. The dismissal was executed in controversial circumstances by then Governor Dharma Vira. Dharma Vira’s appointment had been opposed by the Left, because of his reputation as “Indira Gandhi’s man”. In November 1967, after consultations with the Prime Minister, the Governor rejected the majority claims of the Front, even though they had not actually been tested. President’s Rule was imposed on the state.17 Interestingly, even in 1959, the Centre dismissed E.M.S. Namboodiripad’s first democratically elected Left government in Kerala, despite its majority in the Legislative Assembly. Jawaharlal Nehru dismissed the government on Governor Burgula Ramakrishna Rao’s recommendation. The Governor acted against the spirit of authority vested in him under Article 356 of the Indian Constitution.18

The founding fathers of the constitution even in the wildest stretches of their imagination would not have dreamt that the office of the Governor will be used for political gains and settling political grudges. Ironically B.R Ambedkar had thought that the extreme provision of Article 356 will remain a dead letter and will never be called in for application.19 In the early days of Indian democracy, the same political party was in power both at the Centre and the States. The position has changed with passage of time. Now different political parties, some national and some regional, are in power in the States. Further one single party may not be in power either in the Centre or in the State. Different parties with distinct ideologies may constitute a front, to form a Government. On account of emergence of coalition politics, many regional parties have started sharing power in the Centre. Many a time there may not even be a common programme, manifesto or agenda among the parties sharing power. Further the compulsions of coalition politics may 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, the position of Governor assumed greater significance.20 The appointment of Governor becomes a controversy when the views of the centre and state are not the same on the appointment of a certain person to the post. The state governments apprehend that the Governor so appointed is for doing the work of a watchdog over the state politics than for the effective functioning of state administration. Their apprehensions are not without any reason as we have seen many central governments trying to poke their nose through Governor in state politics. Two examples are worth quoting:

Just after 2014 elections, Kamla Beniwal, the then Mizoram Governor was sacked from her office due to alleged case of corruption over her. This is the same Kamla Beniwal who had series of confrontations with BJP government in Gujarat during her tenure as the Governor of the state. Beniwal appointed retired Justice R A Mehta as Lokayukta in Gujarat against which the state went in appeal to the High Court and later the Supreme Court, which upheld it. Beniwal also sat over legislations passed by the state assembly one of which provided for 50 per cent reservation for women in local bodies. The UPA Government which appointed Kamla Beniwal for the sole purpose of keeping a check on the Modi government in Gujarat. She ended up as being an irritant to the BJP government in Gujarat and was sacked due to this just before her tenure was about to end by the NDA government in 2014.21 In Uttar Pradesh, BJP faced a peculiar situation. Firstly, it needed a party- friendly Governor as law and order situation is fast deteriorating and the centre had to be in loop over key issues. The former UP Governor B L Joshi was a UPA appointee and reportedly enjoyed good personal rapport with Mulayam Singh Yadav, father of UP chief minister Akhilesh. Hence after easing out Joshi, they brought in a hardcore BJP man from Mumbai, Ram Naik.22 If we see from a political point of view then, there is nothing wrong in sacking the Governors appointed by the predecessor party. However, in this process, the office of the Governor has been reduced to mockery. It is necessary that these offices are either terminated for the better good or some safeguards are adopted in order to maintain the dignity of the office.23

Safeguards for Protecting the Dignity of Constitutional Office

 There is no doubt in the mind of a common man that the office of the Governor has been derogated for political gains by all the parties. Some Governors like (Beniwal, Buta Singh etc) have been openly accused of partisanship towards one party at the centre. In the wider interest of healthy functioning of our parliamentary democracy and of federal system, a review of the role of governor is not only appropriate but an urgent necessity.24The judgment of the Supreme Court in B.P Singhal vs. Union of India25 held that the Governor cannot be removed as per the whims and fancies of the central government. If the decision of withdrawal of pleasure is found to be arbitrary or malafide then the decision is open for judicial review. However, the judgement is itself not sufficient to protect the institution of the Governor. A Constitutional amendment related to the appointment and removal of Governor in Article 156 is the need of the hour. The Justice Sarkaria Commission and later the “National Commission to Review the Working of the Constitution” (in 2001) had suggested some sensible measures towards having a non-partisan Governor: The person to be made the Governor should be appointed by a committee comprising the Prime Minister of India, Union Minister for Home Affairs, Speaker of the Lok Sabha and the Chief Minister of the state concerned; he should be a person who has not taken too great a part in politics generally, particularly in the recent past26; his tenure of office must be guaranteed for five years27 and the provision that the Governor holds office “during the pleasure of the President” be deleted with the provision that there could be impeachment of the Governor by the State Legislature on the same lines as the impeachment of the President by the Parliament; after demitting his office, the person appointed as the Governor should not be eligible for any other appointment or office of profit under the Union or a State Government except for a second term as Governor or election as Vice-President or President of India, as the case may be28; and at the end of his tenure, reasonable post-retirement benefits should be provided.

The study team of the Administrative Reform committee has suggested that though the chief minister of the state should be consulted before a Governor is appointed this does not dissolve the primary responsibility of the centre to appoint a suitable and competent person to the post.29 Thus, it is the responsibility of the Central government which currently enjoys a wide majority in the lower house to bring a constitutional amendment as per the guidelines of Sarkaria and Punchi commissions in matters of appointment and removal of Governor. The institution of Governor holds a significant weight in intricate balance between the centre and states in our quasi federal constitution. The Governor can work efficiently and in the interests of people only if his appointment is not politically motivated. Thus, only the persons who have the calibre, nobility and repute for effectively discharging their constitutional responsibility without being partisan should be appointed to this dignified office.

 

Footnotes 

1 JN PANDEY, CONSTITUTIONAL LAW OF INDIA 36 (2007).

2 Article 155, The Constitution of India, 1950.

3 Article 74, The Constitution of India, 1950.

4 Article 157, The Constitution of India, 1950.

5 GOVIND NARAIN, CONSTITUIONAL OBLIGATIONS 59 (1985).

6 Ibid

7Adam Halliday, Governor transfer: Are we a dumping ground, asks Mizoram, THE FINANCIAL EXPRESS, August  25, 2014.

8 V.N SHUKLA, CONSTITUION OF INDIA 542 (2008).

9 Ram Jawaya Kapur v. State of Punjab AIR 1955 SC 549.

10 B.P Singhal v. Union of India (2010) 6 SCC 33 at ¶ 25. [Hereinafter “SINGHAL”]

11 Hargovind Pant v. Raghukul Tilak 1979 (3) SCC 458.

12 Rameshwar Prasad v. Union of India 2006 (2) SCC 1.

13 Ibid.

14 Article 156, The Constitution of India, 1950.

15 Black’s Law Free Online Legal Dictionary (2nd Ed).

16 U.O.I v. Tulsiram Patel (1985) 3 SCC 398.

17 Rajiv Dhawan, Choosing Chief Ministers, THE HINDU, Mar 04, 2005.

18 SUBHASH SHUKLA, ISSUES IN INDIAN POLITY 100 (2008).

19 VOL. IX, C.A.D at 132-135.

20 SINGHAL, Supra note 10 at ¶ 26

21 Shantanu Bhattacharji, All you need to know about CM Narendra Modi vs Governor Kamala Beniwal clash, BUISNESS STANDARD, September 4, 2013.

22 Press Trust of India, Ram Naik new Up Governor, OP Kohli moves to Gujarat, THE INDIAN EXPRESS, July 14, 2014

23 Kirti Pandey & Aditya Sakorkar, Misuse of Governor office started during Indira‟s era, THE SUNDAY GUARDIAN, June 21, 2014.

24 L.P. SINGH, THE GOVERNOR: SAGE OF SABOTEUR 37 (1985).

25 SINGHAL, Supra note 10 (2010) 6 SCC 33.