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With Rajasthan Governor Kalraj Mishra's office approving Chief Minister Ashok Gehlot’s proposal to start the fifth session of state’s Legislative Assembly from August 14, exactly 21 days of his initial request; the role of Governor in India has once again come under scrutiny by political observers. The Congress had accused Mishra for "violating Constitution of India" when he initially refused to accept the government’s recommendation for convening a session of the Assembly.
Role and Powers of the Governor
Rising spats between the Governors and the elected state governments vehemently validates the infamous notion of the former being ‘an agent of the Central government’, acting against the rules laid down in the Constitution and judgments upheld by the apex court. As per the Constitution, the primary function of the Governor is “to preserve, protect and defend the constitution and the law” and for this, he is granted various executive, legislative and discretionary powers. However, these powers need to be used in conjunction with aid and advice of the elected state government as laid down in the 1974 judgment of the Supreme Court in the Shamsher Singh case, where a seven judge Constitution Bench of the Supreme Court ruled that:
“The Governor has no right to refuse to act on the advice of the Council of Ministers. Such a position is antithetical to the concept of responsible government.”
As per senior advocate and former Solicitor General Mohan Parasaran, "The Governor has virtually no discretion when the elected government exists. He must act only on the aid and advice of the Cabinet.”
Can the Governor use his discretionary power on his own?
Articles 163 and 174 of the Constitution deal with the Governor’s role in convening an assembly session. Article 174 of the Constitution gives the Governor the power to summon from time to time “the House or each House of the Legislature of the State to meet at such time and place as he thinks fit…”.However, the phrase “as he thinks fit” is read as per Article 163 of the Constitution which says that the Governor acts on the aid and advice of the cabinet. During Arunachal Pradesh’s 2016 political turmoil, Supreme Court judgment in the Nabam Rebia v Deputy Speaker reaffirmed this interpretation of Article 174 when a five-judge Constitution bench held that a Governor cannot employ his ‘discretion’, and should strictly abide by the “aid and advice” of the Cabinet to summon the House. Governor’s power to summon, prorogue and dissolve the House should be on the advice of the council of ministers. It further added:
“Only in a situation where the government in power – on holding of such floor test – is seen to have lost the confidence of the majority, would it be open to the Governor to exercise the powers vested with him under Article 174 at his own, and without any aid and advice”.
The court said the Governor’s discretionary powers are limited to specified areas like giving assent or withholding/referring a Bill to the President or appointment of a Chief Minister or dismissal of a government which has lost of confidence but refuses to quit, etc.
“The area for the exercise of his discretion is limited. Even in this limited area, his [Governor’s] choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution,” the court said.”
Misuse of office by Governors leading to Judicial Intervention
There have been multiple controversies on misuse of his power by the Governor in selecting the chief minister, determining the timing for proving legislative majority, intervening in day-to-day administration, remarking adversely on specific policies of the state government and so on. Almost all the political parties ruling at the Centre have been accused of misusing the office of the Governor to serve their own vested interests dating back to in 1967 when West Bengal Governor Dharma Vira dismissed the Ajoy Mukherjee government and installed a Congress-supported government with P. C. Ghosh as Chief Minister. The Congress era of 1980-90s saw 1994’s historic Bommai judgment by Supreme Court sought to curb the misuse of Article 356 and laid down clear limits of the Governor’s authority. The Union Front in 1990s and UPA rule from 2003-13 also saw recurrent misuse of Governor’s power, however, it has been questioned at least six times after the 2014’s NDA era, the Supreme Court being called to intervene on most occasions, namely:
Madhya Pradesh (2020): The Supreme Court on 13th April’20 upheld Madhya Pradesh Governor Lalji Tandon’s March order to Kamal Nath led Congress government to prove the majority by holding a floor test in the Legislative Assembly. The top court relied on its landmark Bommai verdict of 1994 and said that Governor was right in calling for the holding of the trust vote. The floor test, however, did not take place as Kamal Nath resigned on the morning of 20 March, paving the way for the return of Shivraj Singh led BJP government.
Karnataka (2018): In the 2018 elections in Karnataka, BJP emerged as the single largest party but fell eight seats short of the halfway mark out of 224. BJP’s B.S. Yeddyurappa was invited to form the government and by the Governor Vajubhai Vala, citing that his party was the single largest in the house giving him 15 days to prove majority. The Congress rushed to the Supreme Court which going by the discretionary powers of Governor laid down in landmark Bommai verdict of 1994, curtailed the time limit to just 24 hours and ordered a floor test soon after. However, unable to get the numbers, Yeddyurappa resigned without taking the floor test.
Goa (2017): In 2017, after Assembly elections in Goa, Governor Mridula Sinha allowed the claim of BJP having 13 MLAs in the 40-member assembly overlooking claims of the Congress which had won 17 seats. BJP did post-poll alliance with some regional parties and independents as and formed the government. Governor’s actions were criticized by several senior advocates and political editors and matter went to the Supreme Court which refused to stay swearing-in of Manohar Parrikar as Goa CM but ordered floor test on March 16. Parrikar cleared the floor test with ease.
Arunachal Pradesh (2016): In November 2015, the Governor J.P. Rajkhowa, on advice of some rebel Congress MLAs, issued an order to ‘prepone’ the Legislative Assembly session of Arunachal Pradesh and directed that these assembly proceedings take place in a community center with a different speaker to avoid “bias”. This led to unrest in the State and culminated in the President’s rule. Later, with Supreme Court’s intervention, President’s Rule was lifted and court rejected the pleas of rebel Congress MLAs.
Frequent judicial intermediation in formation and day to day functioning of opposition ruled state governments, makes us question the credibility of individuals being appointed as Governor of the state by Central Government. A Governor must remain true to his oath of preserving, protecting and defending the Constitution and for that he should not have any conflict of interest or prejudice towards either parties. In this context, it is worth to recollect the recommendations of the Sarkaria Commission (1988) emphasizing the character of the personalities to be appointed as Governors. It stated that,
“Four criteria for being appointed Governor, including that the person should be 'eminent in some walk of life, should be a person from outside of the State, and should be detached and not too intimately connected with local politics of the state”.
The Supreme Court has many times emphasized the urgent need for implementing Sarkaria commission’s recommendations on selection and appointment of governors to protecting the sanctity of this post. The office of Governor was instituted in our Constitution to serve as a crucial link between the Centre and state governments. It has however become, as the political observers describe, a "plush old age home" where Governors act as loyalties to the government nominating them. A political and legal consensus is the need of the hour to comprehensively revise the appointment of Governors with the active involvement of state governments. Will Governor’s office be able to maintain its relevance and necessity in future, is something that time will tell.