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Issues relating to the office of Governor

  • 05 January, 2021

  • 16 Min Read

Misuse of Governor’s office

  • The misuse of the Governor’s office to undermine duly elected State governments is a particularly mischievous disruption of federalism. Kerala Governor Arif Mohammad Khan’s frequent use of his powerful oratory to defend the Centre and question the State on sensitive topics makes him partisan and undermines democratic processes.
  • His refusal to convene a special session of the Kerala Assembly on December 23, as initially requested by the government, yet again proved this. He questioned the urgency of the special session and thought the Assembly lacked “the jurisdiction to offer a solution” to the farmers’ protest, an issue which the Assembly wanted to discuss.
  • This is an encroachment upon the powers of the legislature and the elected government and an abuse of his authority as a nominal head under the Constitution.
  • His conduct was comparable to that of his counterpart in Rajasthan who refused to convene a session of the Assembly in July last year as demanded by the Chief Minister.
  • Kerala Chief Minister Pinarayi Vijayan wrote to Mr Khan stating the Governor had no discretionary powers in the matter and that his actions were unconstitutional.
  • This position was supported by the Opposition too. Thankfully, the government made an amended request for convening the session and the Governor accepted it.
  • Mr Khan had earlier questioned a resolution passed by the Kerala Assembly on the Citizenship (Amendment) Act, besides making public statements supporting the CAA and the farm laws.
  • To assume that an Assembly is acting unconstitutionally if it disagrees with Parliament is disingenuous.
  • By lending himself and his office to such partisan conflicts, Mr. Khan is also besmirching his personal reputation as a fiercely fair-minded public figure. Such conduct by a Governor can weaken federalism.
  • In the event, the controversy overshadowed the one-day session on December 31, which sought the repeal of the central laws that are at the heart of the ongoing farmer agitation.
  • A resolution passed with the support of the ruling LDF and the opposition UDF, and unopposed by the lone BJP member, raised procedural and substantive questions related to these laws.
  • The resolution pointed out that agriculture was a State subject and “as a matter that seriously affects the States, the Bills should have been discussed in a meeting of the inter-State council”.
  • The Bills were passed in haste without even referring them to the Standing Committee of the Parliament, which the Assembly termed “a serious matter.”
  • It has become habitual for the Centre to overlook regional concerns, and the making of the farm laws without consulting States was in line with this trend.
  • The Council of States (Rajya Sabha) has been systematically undermined by arbitrarily labelling bills as money bills.
  • The use of central agencies to browbeat the Opposition-ruled States is yet another strain on federalism.

Governor and the formation of Government

  • Dr. B. R. Ambedkar, in 1948, said that Governor is required to follow the advice of his Ministry in all matters.
  • Cases related to Governor's role in post poll majority: S R Bommai case, Rameshwar Prasad case, Nabam Rebia case.
  • During Hung Assembly: According to Article 163 of the Constitution, Governor acts on the aid & advice of Council of Ministers, except in cases where he is required to act in his discretion.
  • Is there a preferred order for this process?
    1. Governor may invite the leader of the largest single party first.
    2. If no ally or independent members, then he may invite the leader of the largest pre-poll alliance.
    3. If not, he may invite leaders one by one in the order of their size in the new Assembly.
  • Is there any guidance to the Governor on this? Yes. Sarkaria commission on Inter-State relations. It says Governor should follow the following orders
    1. A pre-poll alliance.
    2. The largest single party claiming with the support of others, including independents.
    3. A post electoral coalition, with all partners joining the Government.
    4. A post-poll coalition, with some joining the Government and some extending support from outside.
  • How does the Governor ascertain the majority?
    1. Sarkaria Commission recommends that a person, appointed as CM without a clear majority should seek a vote of Confidence within 30 days.
    2. When the majority of CM is contested by legislators, Governor should not risk a determination of his own outside the House and it would be prudent to test it on the floor of the House.
    3. Normally under Article 174, Governor summons the House only on the advice of the Council of Ministers but he can use his Constitutional rights to convene the House for floor testing of the majority.
  • Principles evolved by the Supreme Court
    1. S R Bommai case (1994): In this SC said that the proper course is the floor test. (Even though the verdict was for the imposition of Prez rule).
    2. Rameshwar Prasad Case (2005): Post-poll combination is ok and Governor cannot decline it on the ground that it is done through unethical means.
    3. Jagdambika Pal case (1998): Unique order. SC ordered a 'composite floor test' involving 2 rival claimants. The significance is that it was clear that the floor test is the only option. Applied in Jharkhand (2004), Uttarakhand (2016) and Goa (2017).
    4. In Karnataka(2018) and Maharashtra (2019), as the legislators were yet to take oath, the court said - to appoint Pro Tem Speaker, then provide oath to new members and then conduct a floor test.
  • Critical Analysis
    1. Appointments of the Governors have made the office vulnerable to the influence of the Union Government as they look towards the Center for guidance. It opens manipulation & misuse of the office of the Governor.
    2. Constitutional expert A G Noorani says that a "State's autonomy comes to nought if its people's mandate can be defied or ignored by a central appointee. 
    3. In Maharashtra & Karnataka, Governor invited the leader of the BJP even though it did not have the support of the majority. It questions the claims of the majority that BJP leaders made to Governors and how the Governors got satisfied even when there was adverse information available in public.
  • Solution
    1. There is a need to reform the appointment and tenure of Governors.
    2. Justice P V Rajamannar Committee was set up to look into Center State relations in 1969, and recommended that State governments be included in the appointment process of Governors to drastically reduce their discretionary powers.
    3. Governor enjoys the leval immunity granted by the Constitution.
    4. Any decision of the governor can be subjected to judicial scrutiny, including the materials placed to arrive at decision. 
    5. The powers and privileges that are attached to the office of Governors must be accompanied by answerability, transparency and accountability.Gv

Source: TH

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