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DAILY NEWS ANALYSIS

  • 07 July, 2021

  • 15 Min Read

Governor

Governor

  • Article 153 to Article 162 of the Indian Constitution deals with the Governor, her appointment, powers and the office of Governor.
  • Governor stands as executive head of a State and the working remains the same as of the office of President of India.
  • Governor has a dual role
  1. He is the constitutional head of the state, bound by the advice of his council of ministers.
  2. He functions as a vital link between the Union Government and the State Government.

Constitutional Provisions – Part 6

  • 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 India.
  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.
  • Article 163: It talks about the discretionary power of governor.
  • Governor is the constitutional head of a tribal council that falls under 6th Schedule.

Issues of Governor’s office

1) Governor and the formation of Government

  1. Dr. B. R. Ambedkar, in 1948, said that Governor is required to follow the advice of his Ministry in all matters.
  2. Cases related to Governor's role in post poll majority: S R Bommai case, Rameshwar Prasad case, Nabam Rebia case.
  3. 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.
  4. 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.
  5. 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. 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.
  6. How does the Governor ascertain 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 Council of Ministers but he can use his Constitutional rights to convene the House for floor testing the majority.
  7. Principles evolved by the SC
    1. S R Bommai case (1994): In this SC said that the proper course is 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. 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 - appoint Pro Tem Speaker, then provide oath to new members and then conduct a floor test.
  8. Critical Analysis
    1. Appointments of the Governors has made the office vulnerable to influence of Union Government as they look towards Center for guidance. It opens manipulation & misuse of office of Governor.
    2. Constitutional expert A G Noorani says that a "State's autonomy comes to naught if it's people's mandate can be defied or ignored by a central appointee.
    3. In Maharashtra & Karnataka, Governor invited the leader of BJP even though it did not have the support of majority. It questions the claims of majority that BJP leaders made to Governors and how the Governors got satisfied even when there was adverse information available in public.
  9. 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, recommended that State Government be included in the appointment process of Governors to drastically reduce their discretionary powers.
    3. Governor enjoys the legal immunity granted by the Constitution. Any decision of the governor can be subjected to judicial scrutiny, including the materials placed to arrive at decision.
    4. The powers and privileges that are attached to the office of Governors must be accompanied by answerability, transparency and accountability.

2) Partisan use of Governor's office to appoint CM with respect to Hung Assemblies.

  • Governor has no tenure, no qualification, no consent of State while appointment.
  • Goa Governor asking minority leader to form the Govt.
  • Tripura: Governor modified speech. He should read what the Govt provides.
  • Tamil Nadu: Governor taking charge of officials doing official work.
  • Arunachal and UK: Governor imposed Prez rule without examining the situation. SC held it unconstitutional.
  • Puducherry Issue and comparison with Delhi
    1. Issue of Parallel administration by Lt Governor Kiran Bedi influence the work of legislature. Bediji informally made a Whatsapp group and asked authorities to report to her. She was working without the advice of Council of Ministers (CoM) and was directly interacting with administration which is against protocol.
    2. Madras HC also said that LG must act on the aid and advice of CoM and not interfere in day to day matters of the Govt. It relied on 2018 SC decision of Delhi where CM and not LG is the Executive Head of NCT. (But now LG is the executive head of NCR Delhi.)
    3. Delhi
      1. Issues of appointment of officials especially Anti Corruption Bureau.
      2. Office of profit issue against Councillors. Hold files of projects.
    4. Art 239 A has merely enabling provisions which allows Parliament to create a law for Puducherry. Hence it enacted UT Act, 1963 which gives power to make laws in "any matter" in State list or Concurrent List. Art 239 AA with respect to (wrt) Delhi limits the powers of Delhi LA wrt Police, Law and Order and Land. Hence Legislative powers of PY >> DL.
    5. Article 239 B = Lt Governor can issue an ordinance only when assembly is not in session and with prior approval of President. If there is difference of opinion on any matter like in Delhi then LG can refer it to President of if Emergency then self.
    6. But SC in Delhi case said that "any matter" does not mean all matter and it should be used only for exceptional situations. Hence there is no legal basis for LG to exercise powers independently and bypass the elected govt of Puducherry.
    7. Respecting Federalism: SC in Delhi interpreted that since Representative Govt is a Basic Feature of the Constitution, the elected Govt must have the primacy.
    8. Conclusion: While PY may not be a State under Constitution, the principle of Federalism should not be limited to States and should also include UT and their LA and arguably councils of Local Govt.

3) Other issues of the Governor office

  • Appointment: Politicians and former bureaucrats identifying with a particular political ideology have been appointed as the Governors by the Governments. This is against neutrality.
  • Governor’s discretionary powers under Article 163 to invite the leader of the largest party/alliance, post-election, to form the government has often been misused to favour a particular political party.
  • Recently, the Governor of Rajasthan has been charged with the violation of the model code of conduct. His support of the ruling party is against the spirit of nonpartisanship.
  • The imposition of President’s rule (Article 356) in case of breakdown of constitutional machinery in a State has been frequently misused by the central government.

Recommendations for misuse of Article 356

  • Supreme Court in the Nabam Rebia judgment (2016) ruled that the exercise of Governor’s discretion Article 163 is limited and his choice of action should not be arbitrary. It must be a choice dictated by reason, actuated by good faith and tempered by caution.
  • The Rajamannar Committee (1971) recommended the deletion of Articles 356 and 357 from the constitution of India. It also said that the governor of the state should not consider himself as an agent of the centre but play his role as the constitutional head of the State.
  • The Sarkaria Commission (1988) recommended that Article 356 should be used in very rare cases when it becomes unavoidable to restore the breakdown of constitutional machinery in the State.
  • Justice V.Chelliah Commission (2002) recommended that Article 356 must be used sparingly and only as a remedy of the last resort after exhausting all actions under Articles 256, 257 and 355.

What is the news?

Source: TH


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