Restructuring Governors’ role and its constitutional framework
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On Friday, November 10, 2023, the Chief Justice of India, Justice DY Chandrachud, made a stinging remark against the Governors of Punjab and Tamil Nadu in response to serious allegations from their respective State Governments, accusing them of causing unwarranted delays in the approval process of crucial bills passed by the State Assemblies. The Supreme Court asserted that a Governor is not permitted to withhold approval of any crucial bills enacted by a State Legislature, even if there are concerns about the legitimacy of the assembly session during which the proposed laws garnered significant support from duly elected representatives of the people.
The intervention of the constitutional courts in cases where Governors overstep their authority vis-à-vis elected governments has been a recurrent issue, spanning from the S.R. Bommai v. Union of India, 1994 till the 2016 Nabam Rebia case. The Court consistently underscores the imperative for Governors to adhere to the established rules of business set by the State Government and the Legislature, accentuating the limited discretionary power of the titular head as outlined in the Indian Constitution. Several other recent events have also ignited fervent debates on the issue, prompting calls for a reevaluation of the constitutional powers vested in Governors.
States in tussle
States led by opposition parties, including Rajasthan, Kerala, Tamil Nadu, Punjab, Delhi, and West Bengal, are entangled in conflicts marked by an attempt to reduce the undue influence Governors exert over their Governments. Various Members of Parliament from different states have introduced private members' bills, seeking to limit or abolish the overwhelming power Governors hold. The recent clash in Kerala between the Government and Governor Arif Mohammad Khan, triggered by the latter’s public media statements, vividly illustrates the tense power dynamics prevailing between Governors and democratically elected state authorities. More recently, the Tamil Nadu State Assembly had adopted a resolution moved by Chief Minister M.K. Stalin, urging the Union Government and President Droupadi Murmu to issue appropriate instructions to Governor RN Ravi, to give his assent to Bills passed by the Assembly, within a specific period. These ongoing struggles raise crucial questions about the balance of power and autonomy within the federal structure of India.
Should the governorship be abolished?
While valid criticisms regarding the potential overreach of gubernatorial powers deserve attention, it is crucial to appreciate the intricate and significant role Governors play in upholding the constitutional fabric. Beyond knee-jerk reactions and political rhetoric advocating for the abolition of the Governor's position, we must acknowledge the complexity of the Governor's duty to ensure legislative alignment with the spirit of the Constitution. Although abolishing the post could be seen as a remedy for shedding colonial vestiges, immediate policy considerations necessitate a nuanced approach. The establishment of the Justice Madan Mohan Punchhi Commission in 2007 underscores the need to address evolving challenges in the relationship between Central and State entities, rooted in shifts within India's political and economic landscape. In navigating these complexities, thoughtful analysis and an understanding of the fundamental reasons behind the Governor's limited discretionary powers are essential for informed reform.
Legal provisions In Question
There are several constitutional provisions that raise concerns about the role of Governors in India. Key articles, such as Article 156 that states that the Governor shall hold office during the pleasure of the President; Article 161 that gives the Governor the power to grant pardons, reprieves, etc.; Article 163 that gives the Governor discretionary powers of appointment of a chief minister when no party has a clear majority in the state legislature, powers in times of no-confidence motions and powers in case of the failure of constitutional machinery in the State; Article 200 that gives the Governor the power to give assent, withhold assent, or reserve the bill for the consideration of the President passed by the Legislative Assembly; Article 356 that gives powers to the Governor to dismiss the assembly in case of the failure of constitutional machinery in the State; Article 361 that makes the Governor not answerable to any court for the exercise and performance of his powers and duties and the very manner of the appointment of the Governors - are some of the discretionary powers that are in question. While the Supreme Court has underscored that these powers should ideally be exercised in consultation with State Governments, the provision exempting Governors from court accountability raises questions about the balance of authority. The increasing trend of political class appointments made by the President on the recommendations of the ruling dispensation at the Centre further amplifies worries about potential Central influence. Henceforth, it is imperative to reassess and recalibrate the Governor's powers, ensuring a more democratic and transparent appointment process in harmony with the nation's federal structure.
Alternate framework
Revamping the Governor's role demands a nuanced policy overhaul, particularly in addressing the pivotal matters of gubernatorial appointments. This proposed framework advocates a collaborative process between the Centre and the States to ensure transparency and open communication channels. Emphasising the Governor as a mediator rather than a mere agent of the Centre, the suggestion is to adopt a selection method akin to that of the President of India. This involves an electoral college comprising elected members of the Legislative Assembly and representatives from all Panchayat/Municipality wards of the State, excluding Legislative Council/nominated members, if any. Such an approach offers a more balanced and independent selection process, steering clear of undue influence from either the Centre or the State Government.
Another essential facet requiring attention lies in deterring the political class from viewing Governorship as a mid-career alternative. To address this concern, it is crucial to implement policies that disqualify Governors from seeking any subsequent public office. Drawing inspiration from the model followed for the President of India, Governors should be ineligible for appointments to other public positions, restricting their scope to the role of Governor or elevated offices such as the President or Vice-President. Such measures are pivotal in curbing the influx of people from political parties, with individual interests to further their political ambitions, from taking the public office of the Governor.
The issue that comes up next is regarding the resignation and impeachment of the Governor. Empowering legislatures to impeach Governors in cases of constitutional deficiencies would enhance accountability. The impeachment procedure of the Governor must be made such that the respective legislative assembly of the State can initiate an impeachment process and impeach the Governor by a two-thirds majority vote. The Governor may submit his resignation, other than to the President of India, to the Assembly Speaker. Another revision needed in this context is fixing a tenure limit of 5 years for the Governor. Until now, the appointment has been initiated and sustained at the pleasure of the President. Furthermore, the Supreme Court must have jurisdiction over the duties and powers exercised by the Governor. This makes any overriding exercise of powers by the Governor accountable.
The Governor can work in harmony with the President of India and can act in an independent manner, devoid of any vested interest or political opinions, only if such changes to the constitutional role of the Governor are made.
(Yadul Krishna is the Parliamentary Secretary to a Rajya Sabha member. Views expressed are personal)