This article has been written by Jefferson Paul R, School of Law, CHRIST (Deemed to be University) Bangalore.
The Governor as a Constitutional Head or a Political Appointee? A Critical Examination of the Role of the Governor in Centre-State Relations
ABSTRACT
India, a federal republic, is characterized by a delicate balance of power between the Union and the States. The Governor, acting as the constitutional head of the State and the vital link between the center and the state, is vested with significant powers. The Governor is vested with numerous powers to act in the sole interest and welfare of the State. However, the Governor’s role often becomes contentious, as political considerations seep into the office, undermining the Governor’s ability to act in the best interest of the State and uphold constitutional values. Therefore, it is crucial that the office of the governor needs independence in making decisions rather than being inflicted pressure from the politics to uphold the Constitutional values. This paper critically examines the Governor’s role in Centre-State relations, focusing on the tension between constitutional duties and political motivations. Also critically examining the role of the governor in Centre-State relations, with a focus on the tension between the governor’s constitutional duties and political motivations. The paper begins by elucidating the constitutional powers and responsibilities of the Governor, including their role as the head of the State, legislative powers, and their role in maintaining peace and security. Subsequently, the paper delves into the political influences on the Governor’s position, such as the appointment process, the role of political parties, and the potential for political vendettas. The paper concludes by offering guidance for making the office of the Governor more independent and efficient, with a focus on ensuring that governors are appointed based on merit and experience, rather than political affiliations. In conclusion, the paper proposes recommendations to enhance the Governor’s independence and efficiency, emphasizing merit-based appointments and minimizing political affiliations. This paper offers a comprehensive analysis of the Governor’s role in Centre-State relations, shedding light on the challenges and potential solutions for this complex and critical position.
Key words: Role of Governor, Constitutional Head, Office of Governor, Federalism, Centre- State relations
INTRODUCTION
The role of the Governor in India’s federal structure is a critical one, serving as the link between the Union and State governments. As the head of the State, the Governor is vested with numerous powers to act as the “Constitutional Head” of the State, and is expected to act in the sole interest and welfare of the State. However, the office of the Governor has often been subject to political influence, leading to allegations of bias and politically motivated decisions. This paper critically examines the role of the Governor in Centre-State relations, with a focus on the tension between the Governor’s constitutional duties and political motivations. The paper begins by outlining the constitutional powers and responsibilities of the Governor, including their role as the head of the state, their legislative powers, and their role in maintaining peace and security. It then explores the ways in which the Governor’s position is influenced by political considerations, including the appointment process, the role of political parties, and the potential for political vendettas. Drawing on contemporary issues and real-world examples, the paper highlights the challenges and opportunities associated with the office of the Governor. It offers guidance for making the office of governor more independent and efficient, with a focus on ensuring that governors are appointed based on merit and experience, rather than political affiliations. The paper also examines the communication process between the Governor and the State government, and the impact of the Governor’s relationship with the Legislature on this process. Through a critical examination of the role of the Governor in Centre-State relations, this research paper seeks to contribute to the ongoing debate about the nature and scope of the Governor’s powers, and the need for greater independence and accountability in the office of the Governor. By drawing on a range of perspectives and sources, the paper aims to provide a nuanced and balanced analysis of this important and complex issue.
IMPORTANCE OF GOVERNOR’S INDEPENDENCE AND IMPARTIALITY IN UPHOLDING CONSTITUTIONAL VALUES AND PROMOTING FEDERALISM
The governor is a constitutional head of the state and is expected to uphold the values enshrined in the Constitution. Political interference in the appointment process can compromise the governor’s ability to act independently and impartially, thereby undermining the constitutional values.[1] The governor plays a crucial role in maintaining stability and effectiveness in the governance of the state. Political interference in the appointment process can lead to conflicts between the governor and the state government, which can adversely affect the functioning of the state administration.[2] The governor plays a crucial role in promoting federalism by acting as a link between the center and the state. Political interference in the appointment process can compromise the governor’s ability to act as an effective link between the two levels of government. The role of Governors in preserving good relations between the Union Government and the States can be challenging due to the diverse political, cultural, and regional interests. The Governors need to balance these interests while upholding the Constitution and promoting the welfare of the State.
POLITICAL AFFILIATIONS OF GOVERNORS COMPROMISING THEIR ROLE AS NEUTRAL ARBITERS
The impartiality of Governors in Center-State relations can be compromised due to the perception that they are biased towards the ruling party at the Center, as they are often appointed based on political considerations. This can lead to tension and mistrust between the State and Central governments. The appointment of the Governor by the Union government in India has been a subject of controversy and debate, with many arguing that it leads to unfairness in Centre-State relations. The Governor is appointed by the President on the advice of the Union government, which has often led to allegations of political bias and favoritism. This is because the Union government may appoint Governors who are loyal to their political party or ideology, rather than those who are best suited for the role. Moreover, the Governor’s role as a link between the Centre and the State has been undermined by the appointment process. The Governor is expected to act as a neutral arbiter and uphold the Constitution, but their political affiliations may compromise their ability to do so. This has led to instances where Governors have acted in the interests of the Union government rather than the State, which has created tensions between the two levels of government. This is often seen in the appointment of governor in the recent decade for example in case of Tamil Nadu during 2016-2017, the appointment of Banwarilal Purohit as the Governor of Tamil Nadu was criticized, as he was seen as a political appointee with close ties to the BJP-led Central government,[3] in case of Madhya Pradesh in 2019, the role of Governor Lalji Tandon in the political crisis in Madhya Pradesh was questioned, as he was accused of acting at the behest of the BJP-led Central government,[4] in case of the union territory of Puducherry in 2016, the appointment of Kiran Bedi as the Lieutenant Governor of Puducherry was criticized by the ruling Congress party, who alleged that she was appointed to undermine the democratically elected government,[5] the same happened at the state of Kerala in 2019, the appointment of Arif Mohammad Khan as the Governor of Kerala was criticized by the opposition parties, who alleged that he was appointed due to his political affiliations with the BJP. The lack of transparency and accountability in the appointment process has been a concern. The Union government is not required to provide reasons for their choice of Governor, which has led to allegations of nepotism and cronyism. This has further eroded public trust in the institution of the Governor and undermined their legitimacy.
MISUSE OF GOVERNOR’S REMOVAL PROCESS AND INSTANCES OF POLITICALLY MOTIVATED REMOVAL OF GOVERNORS
The Article 156 (3) of the Constitution describes the tenure of Governors as five years, and the same article provide that they serve at the pleasure of the President.[6] The president being elected by the indirect election paves a way for this often being misused by the political head in the union whenever there is a Change of government at the centre, consequently removing the governor appointed by the preceding government, this leads to instability and uncertainty in State administration and Center-State relations[7]. The same has happened multiple times over the history starting from the early 80s when the first instance of dismissal of governors happened in 1981, the then President of India, Neelam Sanjiva Reddy, removed the Governor of Tamil Nadu, Prabhudas Patwari, on the advice of the Union government. The move was seen as politically motivated, as Patwari had taken a stand against the Union government’s decision to impose President’s rule in the state, again in 1990, the Governor of Punjab, S.S. Ray, was removed from his post by the President, R. Venkataraman, on the advice of the Union government. Ray had been critical of the Union government’s handling of the Punjab crisis and had refused to sign some ordinances related to the state’s security. Further in 1998, the Governor of Bihar, A.R. Kidwai, was removed from his post by the President, K.R. Narayanan, on the advice of the Union government. Kidwai had been critical of the Union government’s decision to impose President’s rule in the state and had refused to sign some ordinances related to the state’s security and continued in 2002, the Governor of Gujarat, S.C. Jamir, was removed from his post by the President, A.P.J. Abdul Kalam, on the advice of the Union government. Jamir had been critical of the Union government’s handling of the Gujarat riots and had refused to sign some ordinances related to the state’s security. The removal process was also not transparent, leading to severe allegations of political interference which were obvious. Thus, the office of governor is under the influence of the political heads in the centre acting through the president, the office of the Governor needs more independence in making decisions rather than being influenced by political pressure from the Center and this is crucial for upholding the Constitutional values of the Nation and acting in the interest and welfare of the State.
DISCRETIONARY POWERS OF THE GOVERNOR IN INDIA’S CENTRE-STATE RELATIONS: SCOPE, CONTROVERSIES AND JUDICIAL REVIEW IN REMOVAL PROCESS
The Governor in India’s Centre-State Relations has certain discretionary powers that allow them to make decisions without consulting the Council of Ministers. These powers are exercised in matters such as the appointment of the Chief Minister, dissolution of the state legislature, and granting assent to bills passed by the state legislature. The discretionary powers of the Governor are divided into two categories: situational and constitutional. Situational discretionary powers are exercised in situations where the Constitution does not provide clear guidelines, while constitutional discretionary powers are exercised in situations where the Constitution grants the Governor the power to act independently. However, the exercise of discretionary powers by the Governor is not without controversy, as it is often seen as being influenced by political considerations.
The Supreme Court of India’s decision in the matter of “B.P. Singhal v. Union of India”[8] in 2010 held that the President of India cannot remove a Governor from office without sufficient cause and that the power to remove a Governor is not an arbitrary power. The court further stated that the removal of a Governor can only be done in exceptional cases and not as a matter of course. The court also held that the power to remove a Governor is not an absolute power and is subject to judicial review. The court emphasized that the Governor is a constitutional functionary and holds an important position in the federal structure of India. Therefore, the power to remove a Governor must be exercised with caution and only in exceptional circumstances. The court also held that the removal of a Governor must be based on objective criteria and not on political considerations. The court further stated that the removal of a Governor must be preceded by a proper inquiry and that the Governor must be given an opportunity to be heard before being removed from office. The court’s decision in this case has helped to ensure that the office of the Governor is insulated from political interference and that the Governor can perform his or her duties without fear of arbitrary removal.
CRITICISM AND CONTROVERSY OVER GOVERNORS’ DECISIONS AND GOVERNORS ACCUSED OF ACTING IN UNION GOVERNMENT’S INTERESTS
Disagreements over the selection of the party to form a government has been a one of the common source of conflict, with governors accused of acting in the interests of the Union government rather than the state. For instance, Maharashtra in 2019, Governor Bhagat Singh Koshiyari invited the BJP to form the government and administered the oath of office to Devendra Fadnavis as Chief Minister, despite the BJP not having the necessary numbers to prove a majority.[9] The formation of the Maharashtra government was criticized, as he invited the BJP to form the government despite the Shiv Sena-NCP-Congress alliance having a majority. The same happened in Karnataka in 2019. The then Governor, Vajubhai Vala, invited the BJP to form the government in Karnataka, despite the Congress-JDS coalition having the majority of seats. This decision was seen as politically motivated and led to controversy.
INTERFERENCE IN STATE ADMINISTRATION AND NEGATIVE REMARKS ON THE STATE ADMINISTRATION
There have been instances where Governors have been accused of interfering in the day-to-day administration of the State, which is the responsibility of the Council of Ministers. This can lead to confusion and conflict between the State and Central governments. A good example could be West Bengal (2014-2020) The tenure of Governors Keshari Nath Tripathi and Jagdeep Dhankhar has been marked by controversy, with allegations of political interference in State affairs often conflicting with the opinion of the chief minister Mamta Banerji. Governors have been accused of making negative remarks about the state administration, which can undermine the efforts of the State government and can be seen as a breach of their constitutional duty to act as a link between the center and the state.
SITTING ON BILLS
Article 200 of the Indian Constitution confers upon the Governors to have the power to withhold assent to a Bill passed by the state legislature. However, this power has been used controversially in the past, with governors accused of sitting on Bills for an extended period or rejecting them without providing proper justification. For instance there have been several instances of this happening in the states ruled by th opposition parties such as in Tamil Nadu (2021): The Tamil Nadu government passed two bills in February 2021, the Tamil Nadu Private Schools (Regulation) (Amendment) Bill, 2021, and the Tamil Nadu Regulation of Jallikattu Act, 2021. However, the bills were not sent to the governor for approval for several months, leading to accusations that the governor was sitting on the bills. In West Bengal (2021): The West Bengal government passed the West Bengal Universities and Colleges (Administration and Regulation) Bill, 2021, in March 2021. However, the bill was not sent to the governor for approval for several weeks, leading to accusations that the governor was sitting on the bill. In Punjab (2020): The Punjab government passed the Punjab Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Special Provisions Act, 2020, in September 2020. However, the bill was not sent to the governor for approval for several weeks, leading to accusations that the governor was sitting on the bill. In Rajasthan (2020): The Rajasthan government passed the Rajasthan Special Economic Zone (Amendment) Bill, 2020, in July 2020. However, the bill was not sent to the governor for approval for several weeks, leading to accusations that the governor was sitting on the bill. These instances of governors sitting on bills have been criticized for undermining the democratic process and delaying the implementation of important legislation. It is important for governors to act in a timely and impartial manner to ensure that the legislative process functions smoothly.
RELATIONSHIP OF GOVERNOR WITH THE STATE LEGISLATURE
The relationship between the Governor and the Legislature can significantly impact the process of withholding assent to bills in India. When the Governor withholds assent to a bill, the communication process typically involves the Governor returning the bill to the State Legislature along with a message expressing the reasons for withholding assent. The Legislature may then choose to reconsider the bill in light of the Governor’s objections. If the Legislature decides to proceed with the bill, it may pass the bill again, with or without amendments, and resubmit it to the Governor for further consideration. However, the relationship between the Governor and the Legislature can influence how this process unfolds. For instance, if the Governor and the Legislature have a strained relationship, the Governor may be more likely to withhold assent to bills passed by the Legislature. This could lead to a prolonged delay in the passage of important legislation, as the Legislature may need to reconsider the bill multiple times before the Governor is willing to give assent. Furthermore, if the Governor and the Legislature are from different political parties, the Governor may be more likely to withhold assent to bills that are seen as politically motivated or that conflict with the Governor’s own political agenda. This could lead to a breakdown in the relationship between the Governor and the Legislature, as well as a potential constitutional crisis.
Overall, the relationship between the Governor and the Legislature can significantly impact the process of withholding assent to bills in India. A positive and cooperative relationship can help ensure that bills are passed in a timely and efficient manner, while a strained or adversarial relationship can lead to delays and constitutional crises.
DELAYED APPROVAL OF BILLS AND CONSEQUENSES
The delayed approvals of bills by governors in India in the past two years have led to several outcomes. In Tamil Nadu, the Supreme Court flagged the “constitutional obstinacy” created by Governor R.N. Ravi’s failure to assent to twelve crucial Bills passed by the Legislature as a “serious concern.”[10] The Court also chided Punjab Governor Banwarilal Purohit for not giving assent to four Bills passed by the vidhan sabha nor been returned by calling a legislative assembly session unconstitutional in November of 2023.[11] The prolonged delay in assenting to Bills has become a source of confrontation between Opposition-ruled States and their governors, with several State governments approaching the Supreme Court alleging that such conduct is stymieing day-to-day governance. In Tamil Nadu, the government accused Governor R.N. Ravi of positioning himself as a ‘political rival’ and creating a constitutional deadlock by sitting on the Bills for months. Kerala moved two separate petitions against Governor Arif Mohammed Khan, accusing him of trying to “defeat the rights of the people” of the State by indefinitely sitting on crucial Bills, especially those addressing post-COVID public health concerns.[12] Punjab contended that seven of its Bills have been pending consideration by the Governor since June, threatening to bring the administration to a “grinding halt.” Similarly, a collective of academicians, including former Vice Chancellors, urged the West Bengal government to approach the SC on the issue of Bills pending with the Governor, owing to which the search and selection committees for 31 Universities in the State have been stalled.
The lack of a timeline prescribed for Governors to make a decision with regard to a Bill has been misused to delay legislation, a maneuver called a ‘pocket veto.’ Similarly, no timeline has been outlined for the President to decide on the outcome of a Bill. There is, however, a time period of six months prescribed for the State Assembly to reconsider a Bill if the President decides to refer it back to the House. In order to curb the misuse of such gubernatorial powers, Tamil Nadu’s plea has urged the SC to fix a time limit by which Governors should assent or return a Bill. Kerala has also challenged a Kerala High Court ruling of November 30 last year, which declined to fix a timeline for the exercise stating that Article 200 falls under the discretionary powers of the Governor.[13] The extent to which the Governor can exercise his discretion to withhold assent to a Bill has been a subject of judicial scrutiny but there lacks an authoritative pronouncement in this regard. In “Purushothaman Nambudiri v State of Kerala”[14] (1962), the Supreme Court held that since there is no time limit prescribed under Article 200[15] for the Governor to give his assent, the Constitution framers did not intend for a Bill pending assent to be at risk of lapsing on dissolution of the House. In Shamsher Singh’s case[16], the Court held that it is only with respect to the second proviso of Article 200 (the Governor’s power to reserve Bills for the President’s consideration) that the Governor exercises discretion independent of the Council. It also highlighted that such an exercise of discretion must be made only in exceptional circumstances. Similarly, in “Nabam Rebia and Bamang Felix v. Dy. Speaker”[17] (2016), the Court reiterated that the Governor exercises discretion only with regard to whether a Bill ought to be reserved for consideration of the President or not. It also held that Article 163(2) has to be understood in the context of Article 163(1), which means that only those matters where the Constitution expressly permits the Governor to act autonomously cannot be challenged before a court of law.
On November 20, the top court took note of the Tamil Nadu government’s contention that the Constitution does not provide the Governor with the ‘discretion’ to withhold the Bills ‘re-passed’ by the State Legislative Assembly.[18] It also acknowledged the State’s submission that the Governor, having withheld assent and sent back the Bills once, cannot refer the reiterated Bills to the President. Heading a three-judge Bench, Chief Justice of India D.Y. Chandrachud remarked during the proceedings — ‘Once they have been re-passed, these Bills are put in the same footing as Money Bills. Then you [the Governor] cannot reject…’.
TAMIL NADU AND KERALA’S PLEA TO SUPREME COURT ADDRESSING THE MISUSE OF GUBERNATORIAL POWERS
Opposition-ruled States in India have responded to governors’ failure to assent to crucial bills by challenging their actions in the Supreme Court. This has been a growing trend in recent years, with States such as Punjab, Tamil Nadu, Kerala, West Bengal, Punjab, Telangana, and Jharkhand filing petitions against their respective governors. The States have argued that the governors’ actions are unconstitutional and undermine the democratic process.[19] They have sought judicial remedies to ensure smooth governance in their States and to keep the governors under check. The Supreme Court has delivered several landmark judgments in recent months, clarifying the powers and responsibilities of governors. In the case of “State of Punjab vs Principal Secretary to the Governor of Punjab and Another”,[20] the court held that in a Parliamentary form of democracy, real power rests in the elected representatives of the people and that the Governor, as an appointee of the President, is the titular head of State. The court emphasized that the Governor acts on the “aid and advice” of the Council of Ministers, except in those areas where the Constitution has entrusted the exercise of discretionary power to the Governor. The court also clarified that the Governor is required to declare the exercise of his powers under Article 200 of the Constitution, which specifies the Governor’s power to give or withhold assent to a Bill. The court noted that the first proviso to Article 200 stipulates that the Governor may return the Bill for reconsideration by the Assembly in the light of the amendments suggested in a message. However, the court emphasized that the role which is ascribed by the first proviso to the Governor is recommendatory in nature and it does not bind the State legislature. The court also held that the Governor cannot withhold assent to a Bill without following the course of action indicated in the first proviso of communicating to the State Legislature “as soon as possible” a message warranting the reconsideration of the Bill. The court emphasized that the expression “as soon as possible” conveys a constitutional imperative of expedition and that failure to take a call and keeping a Bill duly passed for indeterminate periods is inconsistent with that expression.
SUGGESTIONS
To ensure the independence of the office of the governor in India and prevent political bias in their appointment and functions, the following solutions can be recommended:
Firstly, The appointment of governors should be based on merit and experience, rather than political affiliations. This can be achieved by establishing a transparent and objective selection process that involves a panel of experts, including former judges, civil servants, and academics.[21]
Secondly, Governors should be given a fixed term of office, with a provision for removal only in exceptional circumstances, such as misconduct or incapacity. This will ensure that they are not subject to political pressure and can act independently. Thirdly, The Constitution should provide clear guidelines for the exercise of discretionary powers by the governor, such as the power to withhold assent to bills. This will help to prevent the misuse of these powers for political purposes. Fourthly, The Centre and the states should work together to promote cooperative federalism, which will help to reduce political tensions and ensure that the office of the governor is used to promote the interests of the state, rather than the political agenda of the Centre. Fifthly, the communication process between the Governor and the State government should be clear and transparent, and the Governor should provide reasons for withholding assent to bills. Sixthly, The Governor’s relationship with the Legislature should be based on cooperation and respect, and the Governor should act in the sole interest and welfare of the State. Finally, establishing a formal mechanism for addressing conflicts between Governors and State governments, such as a tribunal or a mediation process. These solutions can help to ensure that the office of the governor is insulated from political bias and that governors are able to act independently and impartially in the interests of the state and the Constitution.
CONCLUSION
These judgments have significant implications for the office of the Governor and the relationship between the Union and State governments. The Supreme Court has clarified that the Governor’s role is primarily ceremonial and that they are required to act on the aid and advice of the Council of Ministers. The court has also emphasized that the Governor cannot withhold assent to a Bill without following the course of action indicated in the first proviso of communicating to the State Legislature “as soon as possible” a message warranting the reconsideration of the Bill. The opposition-ruled States have welcomed these judgments, arguing that they will help to ensure smooth governance in their States and prevent the misuse of the Governor’s powers. However, the Union government and some governors have criticized the judgments, arguing that they undermine the federal structure of the Constitution and infringe on the powers of the Governor. Despite these criticisms, the Supreme Court’s judgments have set important precedents for the office of the Governor and the relationship between the Union and State governments. The judgments have clarified the powers and responsibilities of governors and emphasized the importance of upholding the Constitutional values of the Nation.
[1] 57 Geo. Wash. L. Rev. 596 (1988-1989) Independent Policymaking and Presidential Power: A Constitutional Analysis
[2] Correa, P., Melo, M., Mueller, B. and Pereira, C. (2019), Political interference and regulatory resilience in Brazil. Regulation & Governance, 13: 540-560. https://doi.org/10.1111/rego.12274
[3] Potluri, Vashmath. “Analyzing the Conflict of Interest between Governors and Governments in Light of Recent Developments.” Jus Corpus LJ 3 (2022): 532.
[4] Kailash, K. K. “State Level Coalition Governments and Federal Calculations: Is State Politics an Autonomous Domain?.” (2010).
[5] Tummala, Krishna K. “Fortunes of Federating Units in India.” Cooperative Federalism in South Asia and Europe. Routledge India 61-81.
[6] The Constitution of India, 1950, Art.156(3)
[7] Saxena, Priti. “Constitutional Head of State Without Constitutional Security—the Governor and his Removal.” Indian Journal of Public Administration 51.1 (2005): 94-107.
[8] B.P. Singhal v. Union of India 2010 AIR SCW 3330
[9] Raj, Subhendu Ranjan. “ARTICLE 356 AND ITS DYSFUNCTIONS.” New Dimensions in Federal Discourse in India (2020).
[10] State of Tamil Nadu v. Governor of Tamil Nadu Supreme Court WP (Civil) No. 1239/2023 (Pending)
[11] State of Punjab v. Governor of Punjab, (2024) 1 SCC 384
[12] State of Kerala v. Governor of State of Kerala Supreme Court WP (Civil) No. 1264/2023 (Pending)
[13] See Supra note 12
[14] Purushothaman Nambudiri v State of Kerala 1962 AIR 694
[15] The Constitution of India, 1950, Art.200
[16] Shamsher Singh & Anr vs State Of Punjab 1974 AIR 2192
[17]Nabam Rebia and Bamang Felix v. Dy. Speaker AIR 2016 SC 3209
[18] See Supra note 10
[19] Verney, Douglas V. “The limits to political manipulation: The role of the governors in India’s ‘administrative federalism’1950–84.” Journal of Commonwealth & Comparative Politics 24.2 (1986): 169-196.
[20] State of Punjab v. Governor of Punjab, (2024) 1 SCC 384
[21] Pankaj, Ashok. “Governor in Indian federalism—II: Hiatus between constitutional intents and practices.” Indian Journal of Public Administration 63.1 (2017): 13-40.
