The founding fathers of our Republic, in their vision and wisdom, had opted for the parliamentary system of governance, as they felt it was best suited to our ethos, temperament, and democratic heritage.
They were of the firm belief that only this model would steer the country on the developmental path; they were also confident that the desires and aspirations of the teeming millions would be better addressed and redressed in the duly elected legislative bodies. In actualising their dreams, we have, over the last more than five decades, made significant strides on various fronts while working under this mode of governance.
The role and powers of the governor have always been in question. There have been numerous debates questioning the necessity of a gubernatorial post. To answer these we must take a look at the history books. It will give us a better understanding about the need and importance of the post of a governor.
To give a general idea, the governor is a bridge connecting the union and states in a circle of democracy. It's an excellent example of a quasi federal Constitution.
t The concept of a governor is not new in the independent constitutional system of our country. . Some regulations (pre and Post-Independence) depict a series of events, which led to the establishment of the office of the governor.
The first step taken by the British Parliament to control and regulate the affairs of the East India Company in India was by way of the Regulating Act of 1773, wherein the Governor of Bengal (Fort William) was the Governor-General (of Bengal). Executive Council of the Governor-General was established with four members. There was no separate legislative council. This Act subordinated the governors of Bombay and Madras to the Governor-General of Bengal.
By way of the Charter Act of 1833, the Governor-General of Bengal became the Governor-General of India. First Governor-General of India was Lord William Bentick. This was the final step towards centralisation in British India. Further, by way of Charter Act of 1853, the legislative and executive functions of the Governor-General's Council were separated.
Further, by way of the Government of India Act of 1858, rule of Company was replaced by the rule of the Crown in India. The Governor-General was made the Viceroy of India. Lord Canning was the first Viceroy of India.
After Independence, by way of the Indian Independence Act of 1947, governments were established both at the Centre and provinces and the Viceroy of India and the provincial governors were designated as the Constitutional heads.
In 1968, the Administrative Reforms Commission recommended that the report of the governor regarding the president's rule has to be objective and also the governor should exercise his own judgment in this regard.
Further, in 1971, the Governors Committee laid down the responsibility on the governor to see that the administration of a state does not breakdown due to political instability and required him to send regular reports about the political situation in a State.
The Rajamannar Committee emphasised that the governor of a state should not consider himself as an agent of the Centre but play his role as the constitutional head of the respective state. In 1988, The Sarkaria Commission recommended that state government should be given prominence in appointing the Governor. The chief minister should be consulted before the appointment. The appointment should be made from a panel to be prepared by the state legislature or from a panel to be prepared by the state government or invariably by the chief minister.
The Commission recommended that Article 356 should be used in very rare cases, when there are no other options to restore the breakdown of constitutional machinery in a State. The Commission recommended that before taking action under Article 356, a warning should be issued to the state government that it is not functioning according to the constitution.
Certain provisions provided under the constitution can help us understand the position of a governor, further.
The position of a Governor under the Indian Constitution, 1950.
If we dig deep into the constitutional principles, we will find that the executive functioning of the states are provided under Part VI Chapter II of the Constitution, which includes Articles 153 to 167.
Article 154 mandates, that the executive power of a state is vested with the governor, and is to be exercised by him either directly or through officers subordinate to him "in accordance with this Constitution" – this signifies the unique position of a governor under the Constitution of India. Some of the Articles which explain to us the powers and the role of a governor are Article 153 to 167 of our Constitution. This can be summarised as follows:
Article 153 states that there shall be a governor for each state. It has been added through Constitution (Seventh Amendment) Act, 1956 that nothing in this Article shall prevent the appointment of the same person as the governor for two or more states.
A governor's power under Article 161 is undisputedly exercised on the aid and advice of the chief minister and his council of ministers. The Supreme Court of India in Satpal v. State of Haryana, AIR 2000 SC 1702, held that:
"The power of granting pardon under Article 161 is very wide and do not contain any limitation as to the time on which and the occasion on which and the circumstances in which the said power could be exercised. But the said power being a constitutional power is amenable to judicial review on certain limited grounds. The court, therefore, would be justified in interfering with an order passed by the Governor in exercise of power under article 161 of the Constitution. If the Governor is found to have exercised the power himself without being advised by the Government or of the Governor transgresses the jurisdiction in exercising the same or it is established that the Governor has passed the order without application of mind or the order in question is a mala fide one or the Governor has passed the order on some extraneous consideration."
Article 163 warrants that a governor would exercise his functions, on the aid and advice of the council of ministers with the chief minister as the head. The above edict is not applicable, in situations where the governor is expressly required to exercise his functions, by or under the Constitution, in his discretion.
Therefore, from the above we can derive the following classification of orders:
The measure of discretionary power of a governor is limited to the scope postulated under Article 163(1). Secondly, under Article 163(1) the discretionary power of a governor extends to situations, wherein a constitutional provision expressly requires the governor to act in his own discretion.
In addition to these two, a governor also has the power to additionally discharge functions in his own discretion, where such intent emerges from a legitimate interpretation of the concerned provision, and the same cannot be construed otherwise.
In the matter of Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1, the Supreme Court inter alia held that the discretion exercised beyond a governor's jurisdictional authority, would certainly be subject to judicial review.
A governor has the power to frame rules for the convenient transaction of the executive business of a government, under Article 166. The instant responsibility is also discharged, on aid and advice. All in all, it is apparent, that a governor is not assigned any significant role in the executive functioning of a state.
The details with reference to the duties and responsibilities of a governor in the legislative functioning of as state are incorporated in Part VI Chapter III of the Constitution, which includes Articles 168 to212.
Even though Article 168 postulates, that the legislature of a state would include the governor, the governor is not assigned any legislative responsibility in any House(s) of the state legislature, irrespective of whether it is the legislative process relating to Ordinary Bills or Money Bills.
On perusal of Article 158, we note that the same provides a glimpse of the conditions of the governor's office. It inter alia provides, that the "...Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First Schedule ...".
In so far as the legislative process is concerned, the only function vested with a governor is expressed through Article 200. which inter alia provides, that a Bill passed by a state legislature, is to be presented to the governor for his assent. And its ancillary provision, namely, Article 201, wherein a Bill passed by a state legislature and presented to the governor, may be reserved by the governor for consideration by the President.
The following four courses are open to a governor to whom a Bill passed by the state legislature is presented for assent.
The Governor:(i) assents, or (ii) withholds assent, or (iii) reserves the Bill for the consideration of the President, or (iv) returns the Bill (if not a Money Bill), for reconsideration, with his message. This is to be done as soon as possible after the presentation of the Bill.
The only exception to the non-participation of a governor in legislative functions, is postulated under Article 213 (contained in Part VI Chapter IV of the Constitution), which apparently vests the governor with some legislative power. u Under Article 213, a governor can promulgate ordinances, during the period when the House(s) of a state legislature, is/are not in session. This function is exercised by the governor, undisputedly, on the aid and advice of the council of ministers with the chief minister as the head. The governor is also required to summon the House or Houses of state legislatures, or to prorogue or dissolve them under Article 174.
In the matter of S.R. Bommaiv. Union of India, 1994 (3) SCC 1, following the Sarkaria Commission's recommendations, the Supreme Court underlined that the breakdown of constitutional machinery implied a virtual impossibility, and not a mere difficulty, in carrying out governance in a state.
- Supreme Court said that while the subjective satisfaction of the President regarding such a breakdown was beyond judicial scrutiny, the material on which such satisfaction was based could certainly be analysed by the judiciary, including the governor's report.
- The Supreme Court had reinstated the governments in Arunachal Pradesh and Uttarakhand on 13th July, 2016 and 11th May, 2016 respectively after the arbitrary imposition of the President's Rule.
The Supreme Court classified the instances of failure of constitutional machinery into four heads:
- Political crises.
- Internal subversion.
- Physical breakdown.
- Non-compliance with constitutional directions of the Union executive.
Governors right in ordering floors test
The traditional role of the Opposition in the legislature has been succinctly defined as to "propose", "to oppose" and to turn out the government from power. In the absence of a clear majority, when there is more than one individual staking claim to form the government, the governor may call for a special session to see who has the majority to form the government.
The Indian political scenario has undergone a significant change in recent times, especially during the last one-and-a-half decades. The rule by a single party has gradually given way to coalition governance. Fractured mandates resulting in hung legislatures, minority governments, etc. have led to new political realities as well. The recent trend of coalition politics both at the Centre and in the states has had its impact on the parliamentary practices and procedures also. Governments formed with wafer-thin majorities had been called upon to prove their numerical superiority on the floor of the House more often than before. All these developments are reflected in the number of motions of confidence and no-confidence moved in the Lok Sabha and in the legislative assemblies of the states and Union territories.
In an interesting development in Madhya Pradesh during March 2020, the Supreme Court upheld the governor's decision asking the then Kamal Nath led-Congress government to prove majority by holding a floor test in the legislative assembly after the resignation of 22 Congress MLAs.
While in the present matter, the Supreme Court said that it is best for courts to maintain an "arm's length from the sordid tales of political life", it highlighted the need for law to evolve "to address these burgeoning evils". While so holding, it decided two questions before it: whether the governor can call for a trust vote in the course of "running assembly" and whether he has exercised this authority correctly in this case.
While deciding the above questions, the Supreme Court referred to the nine-judge bench decision in the S.R. Bommai case (supra) and considered a scenario where the governor believed that the incumbent government does not have majority support. In such a case, it said the correct course of action would be for the governor to call the chief minister to face the assembly and to establish a majority within the shortest possible time. It was observed by the Supreme Court that
"The governor is not denuded of the power to order a floor test where on the basis of the material available to the governor it becomes evident that the issue as to whether the government commands the confidence of the House requires to be assessed on the basis of a floor test"
A bench, comprising Hon'ble Mr. Justice D.Y. Chandrachud and Justice Hemant Gupta observed that "in a situation where the governor has reasons to believe that the council of ministers headed by the chief minister has lost the confidence of the House, constitutional propriety requires that the issue be resolved by calling for a floor test. The governor in calling for a floor test cannot be construed to have acted beyond the bounds of constitutional authority."
Article 178 to 187 deals with the officers of the state legislature, including the speaker and deputy speaker, as well as, the secretariat of the state legislature. Whilst Article 179 provides for vacation, resignation and removal of the speaker (and the deputy speaker) of the legislative assembly, Article 183 provides for vacation, resignation and removal of the chairman (and deputy chairman) of the legislative council. In neither of the above Articles, the governor has any assigned role. The only responsibility allocated to a governor under Article 208, is of making rules as to the procedure with respect to communications between the two Houses of state legislature. All in all, it is apparent, that the governor is not assigned any significant role even in the legislative functioning of a state.
The above position leaves no room for any doubt, that a governor cannot be seen to have such powers and functions that would give him a dominating position, over the state executive and the state legislature.
In the matter of Union of India v. Central Electrical and Mechanical Engineering Service Group A (Direct Recruit) Association, CPWD, AIR 2008 SC 3, the Supreme Court a inter alia held that "Executive instructions can only fill in gaps not covered by rules and cannot be in derogation of statutory rules."
The High Court of Guwahati in the matter of Vamuzo v. Union of India 1988 (2) GLJ 468 clarified that the court is within its right to examine the soundness of the report sent by the governor to the President. While so holding, the Court observed:
"37.......We may give another analogy also in this regard. The same is that when a judgement is challenged before a higher court, the judicial officer passing the judgement is not made a party. Despite this, the judgement is scanned by a higher court and opinion can be expressed regarding its tenability or otherwise. Similarly in our views we can express our opinion on the report of the Governor despite his not being before us because of the bar contemplated under Article 361 of the Constitution."
Lieutenant governor VS Governor
Lieutenant governor is entrusted powers under proviso to clause (4) of Article 239AA of the Constitution. This particular clause provides for a council of ministers headed by a chief minister for the National Capital Territory to "aid and advise the Lieutenant Governor" in the exercise of his functions for matters in which the legislative assembly has the power to make laws.
In the government of NCT, Delhi versus Union of India & Another, (2018) 8 SCC 501,matter, it was held by the Supreme Court that a Lt. governor holds more power than a governor in the case of Delhi, because Lt. governor is the representative of the portfolios like land, police and public order, which falls under the domain of the Centre. It was observed that:
"The language of Article 163 is similar to Article 239AA sub clause 4 but the only difference is that the Legislative Assembly cannot make laws with respect to entries 1, 2 and 18 in which the lieutenant governor can exercise his discretion. Thus, the lieutenant governor has more power than a governor of state"
Executive accountability to the popularly elected legislature is one of the most essential ingredients of any parliamentary system. Our parliamentary procedures and practices which have evolved over the years, provide for various devices to organise the functioning of the legislature and the executive. Any act of the governor which undermines popularly elected governments in the states is detrimental to the smooth functioning of our federal-democratic polity.
The areas in which a governor might function are those in which he can act only on the aid and advice of the council of ministers. This is in all areas of the executive functions of the state government [Article 166]. Further, areas in which he can act in his discretion by or under the Constitution and in which he does not need to take the advice of the council of ministers [Article 163 - "except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion."] or, areas in which he might take the advice of the council of ministers but is not bound by it, enabling him to act in his individual judgment or under the Constitution. Interestingly enough, a governor can function in areas that have no concern with the Constitution. For example, where he is acting eo nominee i.e., under its name as a sovereign.
The powers a governor has in the state, they administer is equivalent to that of the President. They can appoint chief ministers, ministers, the state election commissioner and judges of the district courts. They also serve as chancellors of all the universities in the state.
A governor can also dissolve the state assembly if they see the need, and if the assembly is not in session, they can promulgate ordinances. Based on the recommendation of the state election commission, a governor can also disqualify a legislator.
According to Paul R. Brass who is a Professor (Emeritus) of political science and international studies at the university of Washington, Seattle and has published countless books and articles on South Asian politics, ethnic politics, and collective violence, Constitution of India was born not in an atmosphere of hope, but in an atmosphere of fear and trepidation. After independence, the real and urgent challenge was to Integrate India into one string, as partition and secessionist challenges were still present. Constitution-makers were worried if the situation would lead to the Balkanisation of India. The office of a governor was supposed to play a significant role in keeping the situation under control, as well as check any secessionist trends in the states.
Responsibilities of the office of a governor:
- to act as a communication channel between Union and state governments
- to keep the Union (government) informed about what is happening in the states
- to bring a perspective of the Union government to the state and vice-versa.
Therefore, it is a dire necessity that we have a governor with a sound understanding of the constitutional principles and also uphold the same with diligence and moral integrity. Undoubtedly, the office of a governor has a huge bearing on the smooth functioning of a parliamentary democracy. Therefore, in actualising the dreams of the founding fathers of our Constitution, we need a governor who upholds constitutional values the in the right spirit of constitutional trust and morality.
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