The Governor’s Office Has Become Too Convoluted for Constitutional Comfort

A review of the office of governor, which has emerged as the most contentious constitutional edifice almost since the Indian constitution was adopted, is called for as the republic turns 74 years old. Appointed by the president of India, the governor has a term of five years. The executive power of the State is vested in the governor (Articles 152 to 156).

However, beyond this simple statutory prescription, the federal tug of war exacerbated by extreme partisanship orchestrated from the top as well as party loyalty of incumbents has only muddied and distorted the constitutional mandate of the Centre-State relationship.

Though the 1994 Bommai judgment put a brake on the overuse/misuse of Article 356 through governors, the office continued to be in the eye of the storm for a variety of reasons. The main reason continued to be the proclivity of the party in power in New Delhi to be intolerant of a state government ruled by other parties.

From colonial to constitutional

The Regulating Act of 1773 appointed Warren Hastings as governor-general in the company’s headquarters in Bengal. However, it was the Government of India Act, 1858, which vested the Company’s territories in India and their administration to the Queen-in-Parliament and detailed the appointment of the governor in presidencies. Several years down the line, the Government of India Act, 1919 brought in the federalisation of power by vesting the governor-in-council with administering provinces and presidencies in India under the Viceroy and governor-general situated in New Delhi.

The Government of India Act, 1935 concretised the arrangement further and proclaimed the Federation of India. “Governors’ provinces” found place in Part III, Article 46. The governor was ordained as the head of the provincial governments. Importantly, Article 48 (1) said: ‘The governor of a province is appointed by His Majesty by a Commission under the Royal Sign Manual.’

A wide range of discretion given to the governor under Articles 50 (1) and (2) gave him authority over the elected provincial governments. Article 88 enlarged the already vast discretionary powers of the governor to authorise him to take appropriate action through an ordinance in case the assembly is not in session, but it needed to be laid before the assembly when it assembled.

Among the most important provisions was Article 93 empowering him to take the administration of a province under his control if he felt that ‘the government of the province cannot be carried on in accordance with the provisions of this Act…’ Needless to say, this Article of the Act provided the seed for the highly misused Article 356 of the Indian constitution and the governors were willing instruments.

Clearly, the evolution of the governor’s office till the Government of India Act, 1935 was not in a democratic mould. Naturally, the governors, who formed a mixed lot under British rule were from the ICS, the army and other sundry professions and two of the 11 governors in 1947 were Indians.

In 1946-47, the governors precariously found themselves in ‘hard and painful’ situation of administering independence and partition of the subcontinent. The emerging politico-administrative structure created a compulsion of countering violence, the refugee influx and their resettlement, which also brought political pressures from the elected even while sticking to the statutory requirements of impartiality. In the process, the governors, who were themselves in the process of being physically uprooted, supported the civil service and police more than their ministers.

Even though there was consensus in the constituent assembly on retaining the office of the governor as the constitutional head of state for the states in independent India, differences about the procedure and mode of appointment emerged. The apprehensions in adopting the draft Article 131 (Article 155 of the constitution) were regarding keeping the centrifugal elements at bay and non-partisan incumbents in the ‘Raj Bhawans’.

Since an elected governor was perceived as potentially partisan, with prospects of conflict of interest with a state chief minister, a governor appointed by the president of India on the advice of the prime minister was preferred. There were apprehensions about a politician governor, who could equally be partisan. Eventually, the Congress issued a whip to its members in the constituent assembly even as the debate was inconclusive to vote for governors to be appointed by the president.

Rohini Kumar Chaudhari (Assam) arguing for an elected governor was prophetic that a nominated one would be partisan and work on party sentiments or diktat.

In practice

Partisanship was evident in the 375-member Madras legislative assembly soon after the first general elections in 1951-52. The claim of the single largest party by Congress (152 seats) was contested by the United Democratic Front led by T. Prakasam of the Kisan Mazdoor Praja Party, which claimed the support of 166 members. However, ignoring the UDF’s claim, governor Sri Prakasa installed the faction-ridden Congress in government that brought C. Rajagopalachari out from retirement to become the chief minister.

Neither home minister Patel, nor Prime Minister Nehru intervened on statutory or moral grounds. In 1953, the Gian Singh Rarewala government in the erstwhile state PEPSU (Patiala and East Punjab States Union) was dismissed using Article 356; it was a non-Congress government.

Seven years later, the dismissal of the Communist government in Kerala in May 1959 was manipulated by the Congress led by Indira Gandhi, and the governor was complicit. Nehru was uncomfortable but gave way to the party president, his daughter.

Yet, gubernatorial politics did not intensify till the 1967-72 period, when the Congress weakened and lost its hold in eight out of 16 states. As this period witnessed experimentation with coalition governments in the states where the Congress party was either voted out or weakened, the governors were used as willing tools by the Union Government to destabilise the non-Congress governments. After her emphatic win in the 1971 general elections, Indira Gandhi was brazen in the political use of governors. She indeed set a trend that was later followed by Morarji Desai, Rajiv Gandhi and other prime ministers.

The misuse of the governor’s office can be divided into pre- and post-Bommai judgment (1994). In the pre-Bommai period, the governors were willing instruments of using Article 356 at the behest of the Centre. In the post-Bommai judgment period, which brought the use of Article 356 under judicial review, the governors are used differently.

The dismissal of the Farooq Abdullah government (Jammu and Kashmir) in July 1984, in which a split in his party was engineered, allegedly by governor Jagmohan was perhaps the first of the reprehensible misuse of office. No less bizarre was the dismissal of the NTR government in Andhra Pradesh (1984), where governor Ram Lal acted with rare alacrity. Following an unusual drama, not only NTR was back in power, Ram Lal had to quit following a countrywide outrage.

It was under these circumstances that the dismissal of the S.R. Bommai government in Karnataka by governor P. Venkatasubbaiah on April 20, 1989 was challenged and the Supreme Court gave its landmark judgment on Article 356 on the role of the governor.

The 1990s witnessed more indiscretions. Romesh Bhandari’s arbitrary dismissal of the Kalyan Singh government in October-November 1997 invited President K.R. Narayanan’s reprimand for acting ‘in a partisan manner’. The UPA government in 2004 asked the National Democratic Alliance-appointed governors to quit after it took office. Governors Buta Singh (Bihar, 2004), Syed Sibte Hasan Rizvi (Jharkhand, 2004), H.R. Bhardwaj (Karnataka, 2009) and Kamla Beniwal (Gujarat, 2009) did not add to the dignity of the office as they not only worked at the behest of the Union government, they essentially remained party persons, not rising as constitutional heads of state.

Since 2014, the incumbents in Raj Bhawans in states have acted more and more as ideology-driven party workers. The role played by the current vice-president Jagdeep Dhankhar, who still considers himself a representative of his party, as the governor of West Bengal, has only denigrated the office. The roles of Maharashtra governor B.S. Koshyari, Tamil Nadu governor R.N. Ravi (he even proposed changing name of the state and did not complete his address to the legislative assembly) and Telangana governor Tamilisai Soundararajan have all crossed the limits of their constitutional roles. Governors being complicit in tilting towards the ruling party at the Centre in the defection game has been too common during this period.

Bringing transparent constitutionality

The discourse and reform suggestions on making the office constitutional in spirit have been in the public domain since the framing of the constitution began.

Nehru had stressed the candidate must be an eminent public person and be appointed in consultation with the chief minister of the concerned state. That the manner of appointment and dismissal of a governor makes the office weak and partisan has been a running theme from the Rajamannar Committee (1969) appointed by the Tamil Nadu government to the Punchhi Commission (2010).

While none favoured an elected governor, lest a conflict of domain begins with the state chief minister, a fixed tenure of five years and removal only ‘by an appropriate procedure under which a governor who is to be reprimanded or removed for whatever reasons is given an opportunity to defend his position and the decision is taken in a fair and dignified manner befitting a constitutional office have been recommended by all.’ The Punchhi Commission recommended the impeachment of a governor in a similar fashion as the president.

However, on the question of appointment, there is no concrete proposal offered by any of the commission or committee. A consultation with the chief minister of the concerned state and a committee to select an eminent non-partisan, but not necessarily apolitical, person has also been recommended.

The M.M. Punchhi Commission, the last Centre-State Commission to go into the issue, recommended that ‘the governor should be a detached person and not too intimately connected with the local politics of the state. Accordingly, the governor must not have participated in active politics at the Centre or State or local level for at least a couple of years before his appointment.’

Obviously, there is ambiguity in this regard.

I would propose a two-tier selection process. It should begin with the Inter-state Council preparing a panel of persons valid for one year. A committee consisting of the prime minister, the leader of the opposition (or of the single largest party in the Lok Sabha), the speaker of the Lok Sabha, the minister of home affairs and the Chief Justice of India would recommend a panel of three to be sent to the President of India for the final selection to be made.

The writer is a political scientist. He was an Atal Bihari Vajpayee senior fellow, and principal of Shaheed Bhagat Singh Evening College, Delhi University, in 2018.