This Article is written by Annu Kumar
Abstract
This article is totally focused on the role of the governor in the federal structure of India. And how the governor functions, what is the power of the Governor in India given by the constitution etc. Here we have discussed many judicial interpretations given from time to time. There have been many courses of corrections in Indian federalism in recent years, the role of Governor continues to be largely on the uncorrected path, except for one major improvement—a judicial check on the misuse of Article 356 ( President’s rule ) following the S.R. Bommai’s judgment. Here we can see the role of the Governor in the Federalism of India. How does governor work, what’s a discretionary power, is the governor an agent of Union Government or is it like a constitutional head of the state? To study all these things, we need to go through various judicial interpretations given by the Court from time to time.
Keywords:- Governor, Indian Constitution, Federalisms, judicial practices.
Introduction
The nature of the Indian constitution is different from other constitutions of the world. Many countries follow unitary government while many follow the federal form of government. But the nature of the Indian Constitution is either unitary or federal. In the unitary government, the powers of the government are centralized in the central government & the states are subordinate to the centre. In the federal constitution, there is a division of power between the states & the central government & both are independent in their own spheres. The federal structure only means that there is a division of power between two or more parties.
Nature of Indian Constitution:-
1. Federal with unitary features:- A federal government is a system of government that separates the power between the central government and state government of the country. It delegates certain responsibilities to each sector so that the central government has its own task to do and the state government has its own.
2. Unitary with federal features:-Unitary Government means all power vested in the hand of the central government. A unitary system is governed constitutionally as one single unit, with one constitutionally created legislature. All power is vested from top to down. A unitary state is a sovereign state governed as one single unit in which the central government has the supreme authority.
3. Quasi-federal:- Federal government is a system of government that separates the power between the central government and state government of the country but in quasi-federal government, the central government is assigned more power than the state government. In a quasi-central government system, the central government can interfere in the decision which is made by the state government as it pleases.
Role of Governor in Federal structure of India
The governor is the constitutional head of the state as the president is of the centre. The executive power of the State is vested with him and such power is to be exercised by him directly or through an officer’s subordinate to him in accordance with the Constitution (Article 114).
Article 160 of the Indian Constitution states that the President may make any provisions which he feels are correct at that time and also which are not mentioned in the constitution for the functions of the governor.
Article 163 of the Indian Constitution provide that there shall be a Council of Ministers with the Chief Minister at the head to aid and advice him in his functions only till the time where there is his discretionary power and the council is just to aid and advise the governor but the final decision is his only. And the advice of the council of ministers will never be questioned in the court or there shall never be any inquiry done on that.
Article 164(1) of the Constitution provides that the Chief Minister shall be appointed by the Governor and the rest of the ministers shall be appointed with the help and advice of the chief minister and they will hold the office as the governor, please.
Article 167 Of the Indian constitution provides that it is the duty of the Chief Minister to keep the governor informed about all the decisions taken by the council of Ministers in respect of state administration and legislation. Article 167 of the Constitution correspondsto the Article 78 as the same Prime Minister informed the President about all his cabinet administrative and legislative decisions.
Article 200 of the Indian Constitution provides special power to the Governor related to the bill that when a bill is passed by State legislatures and presented to the Governor, the Governor may assent the bill, or withholds the assents, or reserve for the consideration of President, or return the bill to the state legislation for reconsideration but this can only be done once if the bill returns to the governor without amendments, he cannot stop the bill now.
Article 257 of the Indian Constitution provide that the executive power of the Union shall also extend to the giving of directions to a State as to the construction and maintenance of means of communication declared in the direction to be of national or military importance or for the railways in the state but these directions only given when it is felt necessary by the government of India.
Article 356 Of the Indian constitution states that if The Governor of state reported to the President that if state machinery fails to conduct state legislation and violates the Constitution of India, then the President on the advice of the Prime minister imposes the state emergency in that state all the power are handed to the Governor on behalf of the president.
Landmark judgement:-
In Sunil Kumar v. Government of West Bengal[1], the Calcutta High Court observed. “The Governor under the present Constitution cannot act except in accordance with the advice of his Ministers”. The only functions which the Governor may be called upon in certain circumstances to exercise in his personal discretion are the following:
(1) Appointment of the Chief Minister.
(2) Dismissal of a Ministry.
(3) Dissolution of the Legislative Assembly.
(4) Under paras 9 and 18 of 6th Schedule in respect of tribal areas in Assam.
(5) In advising the President to impose President Rule in States.
In Smasher Singh v. State of Punjab[2]Hon’ble SC held that except in the situation where the Governor has to act in his discretion, the Governor has to act on aid and advice of the council of ministers. Having said so, the Governor can act against the aid and advice of the council of ministers under special laws such as the Prevention of Corruption Act, 1947. Additionally, in case of disciplinary action against the judge of the subordinate court under Article 235, the Governor must act on the advice of the High Court and not on the advice of the council of minister.
In the case of K.A. Mathialagan v. Governor of Tamil Nadu[3]the Madras High Court held that the Governor should while proroguing the house always act on the aid and advice of the council of minister.
In U.N Rao v. Indira Gandhi[4], the Apex court held that the position of President and The Governor are titular in nature and both are advised by the Council of Ministers headed by Prime Minister and Chief Minister at the Centre and State level respectfully.
In Sanjeevi Naidu v. State of Madras[5], the court held that Governor is a constitutional head in the state and advised by the council of ministers headed by the Chief Minister under Article 163.
Consolidating Federalism
Federalism in India is getting reduced day by day. Almost every decision is being taken by the centre now. This simply means that the role of governors is also getting reduced. It will not be wrong to say that though the governor is the executive head of the State and follows the Chief Minister and his council of ministers in theory yet in case of federalism being consolidated, the Governor of a State has got reduced to merely an agent of the central government.
Present days, Governor is just a mere agent of the Central Government who can’t do anything without the permission of the President and the President is advised by Cabinets Minister headed by Prime Minister.
There are following some issues that made an impact on the Role of the Governor in Consolidating Federalism:-
- Misuse of Article 356:- Article 356 of Indian constitution is vastly misused by central government from time to time. Since Independence many times state emergency has been imposed by central government. Before the S.R Bommai case, article 356 was imposed many times in India.
- Appointment of Governor:- Article 156 (1) merely states that a Governor of a state shall hold office at the pleasure of the President. What can we can interpret the term ‘pleasure of the President’? Does it imply that, under the parliamentary system, the President merely reflects the will of the Cabinet. In present scenario central government appoint those people who are political leaders, bureaucrats or any other who identifying with the political ideology of ruling government at center. They appointed those persons with whom they made their interest.
Arbitrary removals of Governor
The Office of Governor removed any times by central government without prior notice to that person or without valid reasons “why was he removed from his/her post “ Due to fear of loss of his office, they work for the interest of Central government and act as an agent between the state and centre.
In 2004, the United Progressive Alliance dismissed four governors who were deemed too close to the Bhartiya Janata Party or the Rashtriya Swayam Sevak Sangh. A former BJP MP, BP Singhal, challenged that decision in court. In this case B.P Singhal v. Union of India[6], the apex court held that A Governor cannot be removed on the ground that he is out of sync with the policies and ideologies of the Union Government or the party in power at the Centre. Governors need not be in sync with the policies of the Union Government. They are not required to subscribe to the ideology of the party in power at the Centre. it was also held that judicial review of withdrawal of pleasure was limited in the case of a Governor and that only when a prima facie case of the arbitrariness of mala fide was made out, could the court require the Centre to produce materials to satisfy itself that the withdrawal of pleasure was for good and compelling reasons.
Recommendation
S. R. Bommai v. Union of India[7]
S.R Bommai was the chief minister of the Janta Dal government in Karnataka in 1989. His government was dismissed on the grounds that the Bommai government had lost the majority following the large-scale of his M.L.A. The governor of state report to the President and recommended for president rule. On the basis of the Governor’s report, President imposed a state emergency under article 356 and he has to hand over his powers to the governor.
Bommai went to the Supreme Court against the governor’s recommendation of President rule. In this case, the Apex court held that the power of the President to dismiss the State government is not absolute. The President should exercise the power only after his proclamation of emergency (imposing his/her rule) and that is approved by both Houses of Parliament.
In this case, Supreme Court gave the direction of state emergency imposed in following four conditions as follows:
- Political crises.
- Internal subversion.
- Physical breakdown.
- Non-compliance with constitutional directions of the Union Executive.
The Administrative Reform Commission 1969[8]:- this commission recommended that the report of the governor to recommend the president ‘rule under Article 356 has to be objective and also the governor should exercise his own judgement of this recommendation.
The Raja Mannar Committee 1971[9]:- This committee recommended for omissions of Articles 356 and 357 from the constitution of India. The necessary provisions for safeguards against arbitrary action of the ruling party at the Centre under Article 356 should be incorporated in the constitution. This committee also emphasized 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[10]
The Sarkaria Commission made the following recommendations:
- Article 356 should be used very less only as a matter of last resort. It can be invoked only in the event of political crisis, internal subversion, physical breakdown, and noncompliance with the constitutional directives of the centre.
- Before that a warning should be issued to the suffering state and an alternate way of working should be given.
- The material fact and grounds on the basis of which this article is invoked should be made an integral part of the Proclamation; it will ensure effective Parliamentary control over the invocation of President Rule.
- The Governor’s report must be a ‘speaking document’ and it should be given wide publicity.
- So, the Sarkaria Commission was an important attempt to streamline the centre-state relations.
- It has become a reference point for any discussion on centre-state relations and it has been frequently referred to even by the judiciary.
- However, many of its important recommendations have not been implemented and tensions in federal relations are a recurrent feature.
The Punchi Commission 2007[11]
Some of its important recommendations are given in the following:
- This commission recommends a fixed term of five years to the governors and their removal by the process of impeachment (similar to that of the President) by the State Legislature.
- The governor should have the right to sanction the prosecution of a minister against the advice of the council of ministers.
- It called for an amendment of Articles 355 and 356 to enable the centre to bring specific trouble-torn areas under its rule for a limited period. Hence, it proposed ‘localizing emergency provisions’ under which either a district or parts of a district can be brought under the central rule instead of the whole state. Such an emergency should not be for more than 3 months.
- It proposed that the Centre should have the power to deploy its forces in case of communal conflagration without the state’s consent for a short period of a week.
Thus, we see that the issue of state autonomy has been a major issue in the dynamics of Indian federalism.
Conclusion
For the better functioning of government in a democratic country like India where the government is federal, it is very important that the Governor of State must act judicially, impartially, efficiently when he exercises his discretion power. Governor is not the agent of the Union government but sometimes it acts as an agent and works for them due to fear of lack of his office as no prior notice was given to him for removal. The Bommai verdict allows the Supreme Court to investigate and claims of malicious content in the Governor’s report, a similar extension to cover malicious intention in the invitation process could be a potential solution. The procedure for the appointment of the governor must be fair laid down and must assure a fixed tenure for the governor so that the governor is not under the constant threat of removal by the central government. The role of the governor is absolute necessary for the successful working of the constitutional democracy. He must avoid himself from involving in any political ideology.
[1]AIR 1950 Cal. 274
[2]1974 AIR 2192
[3]AIR 1973 Mad 198
[4]1971 AIR 1002,
[5]1970 AIR 1102, 1970 SCR (3) 505
[6]6 SCC 331. (2010).
[7]1994 AIR 1918, 1994 SCC (3) 1
[8]https://darpg.gov.in/about-arc
[9] https://gkchronicle.com/polity/Committees-on-centre-state-relations.php
[10] http://interstatecouncil.nic.in/sarkaria-commission/
[11] http://interstatecouncil.nic.in/punchhi-commission/
