Intern, Constitutional Rights Initiative
The governor is the head of the state. He is elected by the President of India and holds office at the pleasure of the President. Like the union, there is a parliamentary system, even at the state level. There is a need for a nominal head in a parliamentarian government, which is President at the national level and the governor at the state level. Article 153 of the Indian Constitution says that there shall be a governor for every state, and all the executive powers of the state vests in the governor. Therefore we can say that the post of governor is a constitutional one. For the check and balance in the state, it is necessary to have a head who supervises all actions of the state. The parliamentary system is unstable. A government formed can at any time be broken by the people of India. Hence, a head with a fixed term is required for continuity of administrative work. The parliamentary system is based on party politics. Therefore, a head is required who can be considered above party policies and think for the welfare of people. Governor acts as a bridge between union and state. He has to communicate the state’s aspiration to the union as an elder brother and brings issues of national significance at the state level like a postman. But there are several incidents where the governor has compromised his position in order to favor the existence central government. As we take incidents of Delhi and Karnataka where The Supreme Court’s intervention in the conduct of the Governor of Karnataka and the constitutional status of the Lieutenant Governor (L.G.) of Delhi following his tussle with the Delhi government has once again exposed the fissures in the federal structure of the country. The five-judge bench of the Supreme Court in its judgment in Government of Delhi vs Union of India stated that the elected representative was the real executive and that the L.G. must act as per the “aid and advice” of the elected government except in matters of land, police and public order. The judgment clarified the Constitutional status of the L.G. as an administrator in the limited sense, who should act in the spirit of the constitutional trust and morality.
Governor is a nominal executive head of the state. He forms an important part of the state executive where he acts as the chief executive head. Central Government nominates the governor for each state. The Indian President appoints Governor for each state by warrant under his hand and seal. Central Government is responsible to nominate the governor for each state. Unlike elections of President, there is no direct or indirect election for the post of Governor. Office of a governor is not a part of union executive and is an independent constitutional office. The governor doesn’t serve the union government and neither is subordinate to it.The nomination of a governor by the Union and his appointment by the President in India is based on the Canadian model of government. Since the Governor holds the office under the pleasure of the President, his office has no fixed term. President can remove the Governor and the grounds upon which he may be removed are not laid down in the constitution. Governor may also get transferred from one state to another by the President. He also can be reappointed. An interregnum is not allowed; following which a Governor may sit in the office beyond 5 years (expiry of the term) till the new governor assumes the charge of the office. On President’s discretion, Chief Justice of the High Court of the concerned state can also be appointed as the Governor on a temporary basis when and how the President thinks fit. (Example - On the governor’s death, Chief Justice of HC can be appointed as the governor.) There are various powers and functions of the governor like executive power, legislative power, financial power, judicial power and discretionary power like the Governor of state, unlike the President of India, is conferred with power to act at his own discretion. There are two categories of discretion for the governor. One is Constitutional Discretion and the other is Situational Discretion. There are several incidents where the governor has compromised his position in order to favour the existence central government like the governor of West Bengal said I am constrained to indicate to all of you that on this momentous day of the commemoration of the Constitution Day, the post of the constitutional head of the state has been compromised. This is an unprecedented and challenging situation.... The sequence of events that have taken place bear it out. Such an outrage is unprecedented. I am sure in your deliberations you all will have the occasion to reflect on this and engage in soul searching." and recently, the Governor of Kerala refused to convene a special session of the Kerala Assembly that was intended to discuss the ongoing farmer protest in New Delhi. This conduct is comparable to the many actions of governors of Karnataka, Madhya Pradesh, Maharashtra, etc., that led to unwarranted interference of centre in states’ politics. These states happen to be ruled by the political parties governed by the opposition parties at the centre.Such instances portray the negative image of the state governors as an agent of the centre. The Governor’s office’s misuse to undermine duly elected State governments undermines democratic processes and compromises one of the Basic Structure doctrine elements, i.e. federalism.
The Role of Governor as per the Indian Constitution
Alike the centre in India, the state also has a bit of governance system. The head of the state is the governor and the executive power of the state is vested in him. He is appointed by the president of India who holds the office during the pleasure of the president. Any citizen of India who is more than 35 years of age can be appointed as a governor. He cannot hold any office of profit. He should not be a member of the legislature of the Union or the State (Article 168).
There are two types of governor in India. The Governors that exist in states and Lieutenant-Governors/Administrators that exist in Union Territories and in the National Capital Territory of Delhi.
Controversy over the appointment of Governor:
Interpreters and politicians of India's politics have been opposing the system of appointment of Governor. They say that the Governor is appointed by the President, which is detrimental to the states.The Governor will act only as an agent of the Central Government. Former Kerala Chief Minister E.M. Namboodiripad said that the governor nominated by the centre will act as loyal officer of the central government. He emphasised that election system is necessary if we want to protect democracy. Sardar Patel stated that keeping in view the dignity of this post, it is necessary that the governor should hold elections on the basis of adult suffrage. B.R. Ambedkar asserted that the governor does not have any work to be executes on the basis of discretion or personal decisions and thus the election system will not be profitable in terms of time, convenience and money.
Powers of Governor
The Governor of the state shall possess executive, legislative, financial and judicial powers. But he does not possess diplomatic, military or emergency powers which President of India has.
These powers are exercised by the council of ministers in the name of Governor. Hence Governor is only nominal head and council of ministers is the real executive.He is the constitutional head of the state who appoints the leader of majority party as chief minister. He can seek any information from the chief minister. He appoints the advocate general, chairman and members of the respective state public commission. He can recommend the imposition of constitutional emergency in a state to the President. During the period of President’s rule in a state, the governor enjoys extensive executive powers as an agent of the President.
He is part of state legislative. No bill can become a law until the governor signs it. He can withhold a bill and send it to the President for consideration. He can dissolve the State Assembly before the expiry of its term on the advice of the Chief Minister or as directed by the President. He causes the annual Budget to be presented in the Vidhan Sabha.
Judicial Powers:The governor appoints the district judges. He is consulted in the appointment of the judges of the High Court by the President He can, pardon, remit and commute the sentence of a person convicted by a state court.
Financial Powers:He causes the annual budget to be laid before the Vidhan Sabha; No money bill can be introduced without his prior approval.
Discretionary Powers:The Governor can use these powers: If no party gets an absolute majority, the Governor can use his discretion in the selection of the Chief Minister; During an emergency he can override the advice of the council of ministers. At such times, he acts as an agent of the President and becomes the real ruler of the state; He uses his direction in submitting a report to the President regardingthe affairs of the state; and He can withhold his assent to a bill and send it to the President for his approval.
Incidents where the Governor has compromised his position
in order to favour the existence Central Government.
There are several incidents where the governor has compromised his position in order to facilitate the existence central government like The Supreme Court’s intervention in the conduct of the Governor of Karnataka and the constitutional status of the Lieutenant Governor (L.G.) of Delhi following his tussle with the Delhi government has once again exposed the fissures in the federal structure of the country. The five-judge bench of the Supreme Court in its judgment in Government of Delhi vs Union of India stated that the elected representative was the real executive and that the L.G. must act as per the “aid and advice” of the elected government except in matters of land, police and public order. The judgment clarified the Constitutional status of the L.G. as an administrator in the limited sense, who should act in the spirit of the constitutional trust and morality. Time and again, judicial intervention has ensured the protection of the federal structure, and the judges have reprimanded the Governors for failing to perform their constitutional duties. While the Constitution Bench of the Supreme Court indicted Buta Singh of “malafide intent”, it condemned the Arunachal Governor’s move as a “thrashing given to the Constitution and a spanking to governance”. The Supreme Court verdict in S.R. Bommai vs Union of India in 1994 was a landmark judgment that limited the constitutional power of the Central government to dismiss State governments. The nine-judge bench asserted that the only way to assess the strength of the State government was the floor test and it was not a matter of private opinion either of the Governor or the President. Moreover, the bench declared that the imposition of Emergency under Article 356 was justified only in the event of breakdown of the constitutional (and not administrative) machinery and the event that the proclamation was not immune to judicial review. Recently, the Governor of Kerala refused to convene a special session of the Kerala Assembly that was intended to discuss the ongoing farmer protest in New Delhi. This conduct is comparable to the many actions of governors of Karnataka, Madhya Pradesh, Maharashtra, etc., that led to unwarranted interference of centre in states’ politics. These states happen to be ruled by the political parties governed by the opposition parties at the centre. Such instances portray the negative image of the state governors as an agent of the centre. The Governor’s office’s misuse to undermine duly elected State governments undermines democratic processes and compromises one of the Basic Structure doctrine elements, i.e. federalism. In West Bengal the governor worked in favour of the central government by compromising his position by running a parallel government in the state.
The governor’s role is not merely an agent of the centre sitting in state capitals; he is the lynchpin of India’s federalism and democracy at the state’s level. Therefore, the governor’s role is indispensable for the successful working of constitutional democracy, and he must withhold the virtue of impartiality.
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