GOVERNOR - POLITY
News: Needless needling: On Governor-government ties in Tamil Nadu
What's in the news?
● The
presentation of a memorandum against Tamil Nadu Governor R.N. Ravi by MPs of
the ruling DMK-led Secular Progressive Alliance to President Droupadi Murmu is
yet another reflection of the fractured relationship between the DMK regime and
the Governor.
● Irrespective of their differences, this unfortunate development could have been avoided with some effort and reasoning on both sides.
What is meant by the Doctrine of Pleasure?
● The
pleasure doctrine is a concept derived from English common law, under which the crown can dispense with the
services of anyone in its employ at any time.
● Under
Article 164, the Chief Minister is
appointed by the Governor; and the other Ministers are appointed by the
Governor on the CM’s advice. It adds that Ministers hold office during the
pleasure of the Governor.
● In a constitutional scheme in which they are appointed solely on the CM’s advice, the ‘pleasure’ referred to is also taken to mean the right of the Chief Minister to dismiss a Minister, and not that of the Governor. In short, the Governor of an Indian State cannot remove a Minister on his own.
Constitutional Discretions of Governor in Federal
India:
The
Governor has constitutional discretions in the following cases.
● The
Governor can dissolve the legislative assembly if the chief minister advises
him to do following a vote of no
confidence. Following which, it is up to the Governor what he/ she would
like to do.
● The
Governor can recommend the president about the failure of the constitutional machinery in the state.
● The
Governor can reserve a bill passed
by the state legislature for the president's assent.
● The
Governor can appoint anybody as chief minister if there is no political party with a clear-cut majority in the assembly.
● The
Governor can seek information from the
chief minister with regard to the administrative and legislative matters of
the state.
● The Governor can refuse to sign an ordinary bill passed by the state legislature.
Issues with Governor in Federal India:
1. The issues of selecting the chief minister:
● Governor
of Goa ignored the established principle of inviting the single largest party
and appointed BJP leader Manohar Parrikar as the CM.
● The
Congress has won 17 seats in Goa and the BJP has 13 MLAs in a House of 40.
● The
Governor did not consult the single largest party and invited BJP, who formed
an alliance, to form the Government.
● A similar situation has developed in Manipur, where its Governor invited the BJP to form the Government, which won fewer seats than the Congress.
2. Taking apparently long time in giving assent to
bills or reserving bills for the President:
● The
constitution empowers the governor to reserve a bill for the President’s
consideration. This is an important
‘discretionary power’ which is necessary for the Governor to make sure that
state’s laws fall within the framework of the constitution.
● But
such gubernatorial interference would be necessary only very rarely and the
expectation, contrary to the reality, is that its procedure should not be
misused to ‘cold storage’ a bill fairly passed by the state legislature.
● The
center’s interference with state legislative process was so much disliked by
the BJP that in its submission to the SARKARIA Commission, it suggested that
the center before passing a bill even on an item in the Concurrent List should
consult the states.
● Governor’s action of unnecessarily and voluntarily delaying or postponing something despite knowing that there will be negative consequences for doing so. For example, the Tamil Nadu Governor forwarded the bill for exemption from the NEET to the president after considerable delay.
3. Exercising powers of the Governor as the chancellor
of state universities:
● Governor
as the chancellor of state universities is technically free to act on his own
within, of course, the limitations imposed by the university statute.
● But
then, as in principle, the governor is an outsider to the state, he would not
be conversant with local dynamics to handle the affairs of state universities.
● Hence, he will have to seek advice from local sources. It will be both inappropriate and unwise for the governor to lend his ears covertly to the local members of the party ruling at the center rather than transparently seeking advice of the chief minister and other concerned ministers, as the SARKARIA Commission suggests.
4. Not following the advice rendered by the
Executives:
● Rajasthan
Governor KALRAJ Mishra's rejection of the state Cabinet's new proposal to
convene a session of the Assembly on July 31 has raised new legal questions
about the Governor's powers.
● This is the second time the Governor has delayed the request, which would allow Congress Chief Minister Ashok Gehlot to demonstrate his strength on the House floor.
5. Demanding information about day-to-day
administration:
● The
constitution empowers the Governor to ask for information on administrative
matters from the chief minister.
● This provision was hotly debated in the constituent assembly with some members even calling it “very dangerous,” for it would likely open the door for gubernatorial intervention in day-to-day state politics.
6. Misuse of Article 356:
● A
Governor’s recommendation for President’s Rule (Article 356) in a state has not
always been based on ‘objective material’, but on political whim or fancy.
● This power has been abused by political parties in power at Centre to dismiss governments in states governed by parties in opposition.
Why is Governor in the state inevitable?
1.
The Governor has various functions, such as addressing the joint session of the Assembly and the Budget session, and signing Bills
that have been passed by the Assembly.
2.
The Governor has administrative and
political functions to perform. Administration during the president's rule,
administration of scheduled areas in some states. Important role in formation
of government during hung assembly.
3. The Governor is essentially a link between the Centre and the States.
4.
India is not a truly federal country.
It adopted quasi-federal in which we
have federal features and unitary bias. Hence, the office of Governor is
inevitable in the context of quasi-federalism.
5.
The Constitution was the culmination of
the democratic aspirations of the people, and its major pillars - universal
adult suffrage, the parliamentary system, fundamental rights - are all
expressions of those aspirations. But there were also moments where the framers
lacked the courage of their convictions. If granting universal adult suffrage
at one stroke was a leap of faith, then at other places, driven by concerns
about maintaining national integrity and preventing disintegration in the teeth
of the trauma of Partition, the framers pulled up short. They were committed to
federalism - but not too much federalism, for fear of secession; they were
committed to popular democracy, but also wanted to retain some manner of
control, lest democracy unleash the kinds of passions that would trigger its
own destruction. The office of the Governor
represented one such “choke point” in the Constitution (ordinances and
emergencies are others), where federalism and the popular will were to be kept
in check from above, if the occasion ever arose.
6.
Parliamentary form of government
which was adopted in the states necessitated the office of Governor as a
nominal head.
7. Maintenance of national interests, integrity and internal security advocates central supervision for which the governor is required.
Rather than abolishing the office of governor, it is essential to reform the governor's office as it is inevitable in the parliamentary set up. Hence, the governor, the constitutional head of the state, would act as a constitutional lynchpin between the center and state and fulfill his constitutional duties.
Reforms needed:
1. Punchhi Commission on Governor:
● He
should be from outside the State and a
detached figure not too connected with the local politics of the State.
● He
should be a person who has not taken an
active part in politics, generally and particularly in the recent past at
least two years prior to his appointment.
● He
must be appointed after consultation
with the Chief Minister of the State concerned.
● A
committee should be formed that is
entrusted with the task of appointment of Governors. This committee may
comprise the Prime Minister, the Home Minister, the Lok Sabha's Speaker and the
concerned Chief Minister of the State.
● Deletion of the Doctrine
of Pleasure from the Constitution. His tenure of
office must be guaranteed and should not be disturbed except extremely
compelling reasons and if any action is to be taken against him. He must be
given a reasonable opportunity for showing cause against the grounds on which
he is sought to be removed.
● In
case of such termination or resignation by the Governor, the Government should
lay before both the Houses of Parliament a statement explaining the
circumstances leading to such removal or resignation, as the case may be.
● Recommendation of provision for the Governor's impeachment by State Legislature.
2. SARKARIA Commission:
The
SARKARIA Commission has proposed the following additional criteria for
appointing someone to the Governorship.
● A
politician from the federal government's dominant party should not be appointed
Governor of a state ruled by another party or a coalition of parties.
● After
consulting with the Chief Minister of the State in question, he must be
nominated.
● He
should be a well-known figure in some
field.
● He
should come from outside the country and be a distant figure who isn't too
involved in the country's local politics.
● He
should be someone who hasn't been involved in politics in the past, especially
in the recent past.
● People
who are members of minority groups
should be given an opportunity.
● His term in office must
be assured, and he should not be removed from
office unless there are exceptionally compelling grounds or if disciplinary
action is being taken against him. He must be given a reasonable opportunity to
demonstrate his case against the grounds for his removal. In the event that the
Governor is terminated or resigns, the Government should present a statement to
both Houses of Parliament detailing the reasons that led to the removal or
resignation, as the case may be.
● After
he leaves office, he should be barred from holding any other constitutional
position other than Governor, Vice-President, or President.
● He
is not an agent of the Centre just
because he prepared a report pursuant to Article 356. He does so because he
swears allegiance to the Constitution, the law, and the people of the state. He
must be satisfied that there is a genuine breakdown of constitutional
machinery, which he must report in the public interest.
● Reasonable post-retirement benefits should be offered at the end of his service.
WAY FORWARD:
1.
The Governor of the state should not consider himself as an agent of the center
but play his role as the constitutional
head of the State.
2.
The report of the governor regarding the President’s
rule has to be objective and also the governor should exercise his own
judgment in this regard.
3.
As per the SARKARIA commission: The
order of preference the Governor should follow in selecting a CM in such a
situation as follows.
● An
alliance of parties that was formed prior to the elections.
● The
single largest party staking a claim to form the government with the support of
others, including independents.
● A
post-electoral coalition of parties, with all the partners in the coalition
joining the government.
● A
post-electoral alliance of parties, with some of the parties in the alliance
forming a government and the remaining parties, including independents,
supporting the government from outside.
4.
The Code of Conduct for the Governor should provide some “norms and standards” that the governor is allowed to utilize and
exercise on his judgment while using his “discretion” and his powers.
5. The post of the Governor should be reserved for non-political appointees, and the Supreme Court should lay down the law on how the Governor ought to act when an election yields a fractured verdict.
Thus,
the role of governor is indispensable
for the successful working of constitutional democracy. He must refrain
from aligning himself to any political ideology. The virtue of impartiality
must be withheld to ensure a free and fair election in a democracy. This will
go a long way in preventing the dismissal of state governments on petty and
manufactured grounds of lawlessness.