Governor, a bridge between centre & state, overstep is overreach: review of judicial decisions

Image: Kimberly Pereira / Scroll.in

To understand the powers of Constitutional Authorities is to understand the limitations the Constitution placed on these authorities thereby creating a system of checks and balances- between state and individual, centre and state, executive and legislature, judiciary and executive etc.

The Governor- being the constitutional head of state and an appointee by the centre- is a post that has been persistently in the news for its conflict with the state government, albeit when the latter hails from a party that is not the Bharatiya Janata Party (BJP), a parliamentary wing of the Rashtriya Swayamsevak Sangh (RSS).

One debate that consistently resurfaces whenever Indian government has tilted majoritarian –and post 2014 this tendency has been persistent and dominant– the debate around the necessity or otherwise of the institution of governor have gained momentum. There have been demands made by major political parties (in power in various states) for the abolishment of the post of the governor. Some of course, have argued for a continuation of the post. The post of Governor becomes central to public debate when there are instances of overreach, with the man or woman in position, stepping on the functional toes of the state government in power. Ironically, when there has been a need, of constitutional governance failure in states, like for instance when targeted violence against vulnerable sections is unleashed and remains uncontrolled, Governor(s) have rarely stepped in, not even with a constitutional reprimand!

As the head of executive- the governor’s powers are understood to be limited. As the constitutional head of the state, the Governor appoints the Chief Minister and the Council of Ministers on the advice of the CM, who- according to the constitution- ‘serve at the pleasure’ of the governor.

Banking on this tradition, verbatim, Kerala governor Arif Mohammed Khan has chosen the path of head-on confrontation with the government in power in the state when he went on to inform the Chief Minister of Kerala Pinarayi Vijayan that one of the state’s ministers does not enjoy governor’s pleasure to serve.[1] His peremptory and high handed ‘sacking’ of eight Vice Chancellors without serving them adequate notice now lies before the High Court of Kerala.

Other examples include the tenure of the recently elevated West Bengal Governor, Jaideep Dhankar to the even more publicly prominent post of Vice President of the Indian Union. While in seat at the Raj Bhavan in Kolkatta, his tenure there was marked with distasteful run-ins with the Trinamool Congress government, his position publicly partisan as he fell in line with the strong arms and crude designs of the Modi-Shah Centre.

Farther south to Tamil Nadu, the Governor, a former police officer, RN Ravi, has drummed up his fair share of public wrath (even in his previous stint in Nagaland) through the vocal praise of certain Central policies strongly opposed by the state government. This includes the common NEET exam and the National Education Policy (NEP). He has also delayed assent to several Bills passed by the DMK government. Besides, his views on ‘Sanatana Dharma, Aryam, Dravidian, Scheduled Castes and Thirukkural have brought him open condemnation.

There have been several more.

Given the increasingly long list of Governors breaching the state’s federal powers, it is crucial to understand the powers of the governor regarding appointment of the Council of Ministers and the limitations on such powers.

Before going into the details of the governor’s powers- it is important to understand that the governor heads the executive wing of a state- the branch that implements laws, policies etc. The Chief Minister and the council of ministers are a part of such Executive. The Legislature- another wing of the state is where laws are made. The Chief Minister is a legislator there and is accompanied by other legislators to frame laws. An understanding of this distinction is important to distinguish between a governor exercising their rightful power and evaluating any possible instances of overreach.

The phrase ‘Governor is the Constitutional Head of the State’ does not, by any stretch of the imagination, mean that a governor is the undisputed head of the state who makes decisions for the people of a state. After all, they (Governors) are nominated heads of state whereas the Chief Minister is elected. It would be undemocratic to confer greater powers on a nominal head. Since the powers that are vested in governors are wide ranging — from power to pardon to power to (formally at least) appoint the Chief Minister, it would be reductive to understand all the powers within the bounds of this article.

This article, therefore, will concentrate specifically on the power of the governor to appoint a council of ministers and whether the governor would have the power to remove ministers at his pleasure or not. First, any limitation on the governor’s power is looked at from a literal viewpoint i.e., from a plain reading of the article (in the Indian Constitution) that confers such a power on the Governor to appoint ministers and second, the limitation is evaluated after analysing judicial decisions on power of governor to ‘appoint’ or ‘remove the council of ministers.

The Governor is a constitutional head of state. For a person to be appointed as governor, he or she should be 35 years or age and an Indian Citizen. They should, at the time of appointment, neither hold any office of profit nor should they be a member of any house of the Indian parliament nor any state legislative assembly.

Who appoints the Governor?

The Governor is appointed by the President on the advice of the Prime Minister (PM). It is with the PM, therefore, that real power lies in this regard. Despite being appointed by the Centre, the governor is seen as the constitutional head of the state executive. The Governor, in this aspect, has two roles to play. One is the role of being (acting as) representative of the centre that appoints him. Second is the role of head of the executive, a role that is bestowed on him by the constitution.

Usually, when there is a ‘strong centre’ and a rebellious (read oppositional) state government, the Governor becomes an important tool in the hands of the centre to exert its muscle on the state. An example is the Governor Kumudben Joshi during the years, 1985-90 in the state of Andhra Pradesh. She toured the state extensively almost like a politician and attracted the furore of the then ruling Telugu Desam party headed by NTR.[2]

Decade long political developments and confrontations have led to a series of judicial interpretations. After a string of judicial decisions, the governor’s role has come to be understood as important but nominal. Unless there are dire situations like a national or state emergency where the need for democratic ideals and processes is trumped by the necessity to ‘protect the unity and integrity of the nation’, the governor remains a nominal head.

The Constituent Assembly debates are often instructive. The Assembly that was convened to discuss and draft a constitution for Independent India, had crucial interventions on the consequences of power overreach by the Governor. “When the whole of the executive power is vested in the Council of Ministers, if` there is another person who believes that he has got the backing of the province behind him and, therefore, at his discretion he can come forward and intervene in the governance of the province, it would really amount to a surrender of democracy,” submitted Dr. PK Sen while agreeing to the proposal that the governor should not be an elected head.[3] It was also argued in the Constituent Assembly debates that given the fact that the Governor is only a symbol, a figurehead, there would be no point in spending money in having him elected.[4]

Appointment of Council of Ministers.

Article 164 states that ministers shall be appointed by the governor.

164. Other provisions as to Ministers.—(1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor:

Reading and understanding Article 164(1) is of importance, in order to understand the limitation on power of a governor. There are three parts to the said article.

First, the Chief Minister is appointed by the governor. It is now settled that the Governor must appoint the person who commands a majority on the floor of the house (house means the legislature) as Chief Minister. Although there have been some controversies around the Governor swearing in the CM first and then, thereafter, letting him prove his/her majority in the house, ultimately- the wisdom of the house in electing its leader has prevailed over the Governor’s discretion.

The second aspect is that the Governor appoints the other ministers ‘on the advice of the Chief Minister’. This means- governor’s ‘discretion’ has been limited by the fact that he/she has to act on the advice of the Chief Minister.

The third aspect is that the ministers shall hold office during the ‘pleasure of the governor’. The phrase ‘pleasure of governor’ would not, or does not mean, the absolute whim of the Governor. If the constitution empowered the chief minister (CM) to be a participant -a decisive one, at that- in the process of appointing a minister, it would not deter the chief minister from being a participant in removing the minister. It is implied that since it is the CM who advises the governor on whom the governor should appoint as the CM, the governor would also be advised by the CM in removing the minister. To put absolute power in the hands of the Governor would be to place a nominal head of the state above the status of an elected head while carrying out the processes of policy making, implementation and administration. Moreover, the Governor is not appointing the minister by himself. He is acting on the advice of the Chief Minister. The Governor has neither to apply his mind over appointment unless specified by the constitution explicitly nor is he to initiate removal of a minister.

Judicial Decisions on Powers of Governor

Article 163(1) first mentions the Council of ministers. It states as follows:

163. Council of Ministers to aid and advise Governor.—(1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

This means except in those functions where the Governor is empowered by the constitution to exercise his discretion, his exercise of other functions shall be done on the advice of the council of ministers.

In the case of K. Rajagopal vs. M Karunanidhi, 1971– the Supreme Court held that if a legislature of a state is dissolved- that does not automatically dissolve the council of ministers. The council of ministers is a mandatory office as stated in Article 163(1).[5] This case took its reasoning from another landmark judgement in the case of UNR Rao vs. Indira Gandhi, 1971wherein the Court had to answer the question whether the Cabinet ceases to exist if the House of People gets dissolved. The court stated that there is nothing in the constitution that stops the Prime Minister from functioning when the House of People is dissolved.[6]

The court in the UNR Rao stated as follows: “But such dissolution  of the House  does  not require that the Prime Minister  and  other ministers  must resign, or cease to hold office or  must  be dismissed   by the  President, because,  Art.74(1) is mandatory  and the President cannot exercise  his  executive power  without the aid  and  advice  of  the Council of Ministers, with the Prime Minister at the head. This view is also in accordance with the conventions followed not only in the United Kingdom but in the countries following a similar system of responsible government”

In the landmark case of Shamsher Singh vs. State of Punjab, 1974 the court again reiterated the view that the governor’s function should be in harmony with the council of ministers. In this case, officers who were removed from their posts by ministers contended that the Governor ought to have removed them. The court however stated that the decisions of the ministers are to be understood as decisions by the Governor and the decisions and functioning is to be in harmony with the ministers.[7]

If the governor is not given the discretion to appoint council of ministers (Article 164(1) mandates that the council be appointed on advice of chief minister) and if his non-discretionary powers are to be exercised on advice of the council of ministers, the governor would need the advice of the council to dismiss them. The governor cannot remove the minister stating that the minister does not enjoy his pleasure anymore.

In another case, Dattaji Chirandas vs State Of Gujarat And Anr, 1998 the Gujarat High Court held that the council of ministers comes into existence the moment the CM takes oath. It stated “this Court is of the view that the moment the Chief Minister is sworn in, there comes into existence a Council of Ministers wherein more Ministers can be appointed subsequently, but till then the Chief Minister acting as the Council of Ministers is not deprived of his power and duty of aiding and advising the Governor under Article 163(1) of the Constitution. Unless there is President’s Rule, there is always a Council of Ministers in a State.”[8]

This judgement also highlights how important the council of ministers are within the constitutional set up.

Conclusion

The Governor then should act as a bridge between the state and the centre. As an institution that is appointed by the centre but paid from, by the state exchequer they are governor to, the Governor has to bear in mind interests of both the centre and state. Any overreach of power, more than what the Governor is constitutionally empowered to, would result in imbalance and chaos in the administration of the state. The council of ministers are appointed by the Governor on advice of the Chief Minister, and it would not be constitutional to allow the Governor to remove any minister arbitrarily. The process would have to be initiated by the Chief Minister.

(The author is a legal researcher currently giving his post graduate examinations)