Is the Governor really needed these days?

The Maharashtra elections[1] and the related controversy sparked thereby has again aroused the question on the importance and the functions of the governors in India. The role of the governor has been questioned on many accounts especially for not adhering to the constitutional principles of democracy.


INTRODUCTION

The governors in India have had a varied history. There were governors in the Mughal times and these had a different role to play as compared to the governors at the present. The Mughal governors were known to revolt against the political majority at the Centre. Then came the British that brought along with them the concept of governor generals and viceroys. The governors in these times were expected to act on the advice of the Governor Generals and Viceroys. They were representatives of the British Crown. This has been borrowed by the Indian Constitution makers during the independence period. The governor in India at present acts on the aid and advice of the Council of Ministers of the Legislative Assembly. The governor has been mentioned in Article 153 of the Indian Constitution[2]. Articles 155 to 161 decode the functions of the governor and the official duties associated with it. The Constitution states that the governor is to be appointed by the president under his hand and seal. This is done to ensure that the governor is truly the constitutional head of the state and does not play a role of the political man in the state. His function is to act on the aid and advice of the council of ministers and the chief minister. He appoints as the Chief Minister of the State the person who is the leader of the majority ruling party in the state. The appointment of the chef minister and the other ministers is not made clear in the constitution. The document under article 164 merely mentions that the governor shall appoint the chief minister and the other minsters shall be appointed on advice of the chief minister. The convention has been to appoint the leader of the ruling party and in their absence a leading coalition as the chief minister. The intention of the constitution makers is reflected in the constituent assembly debates. It was intended that the governor is “purely constitutional and without the power of interference in the administration of the province.” The governors are appointed by the president to ensure that the person is free form the influence of the centre. It is the job of the Governor to ensure constitution is upheld in all the aspects in the State and to act as a “Conscientious Keeper”.

On 30 October 1946 Mahatma Gandhi called up the last governor of undivided India Frederick Burrows. Burrows asked him “What would you like me to do?”. Gandhi replied with his well-known intellect “Nothing.” This anecdote from India[3] at the threshold of freedom summarises the position of the Governors in the country.


MAHARASHTRA AND THE GOVERNOR

This has however been put to question in the current case of Maharashtra. The Governor apparently invited the leader from the party which did not have majority in the house. It is not surprising that the person appointed is the member of the leading party at the Centre. The oath was taken in haste at wee hours of the morning. The central leading party representative and the haste of the decision are not a coincidence. It appears that this was a planned move that was to ensure that the leading party forms the government at the state level. It is not to deny the fact that the alliance of Sena and BJP had the majority after the elections. The events that unfolded prior to the CM fiasco are the proof that the central party was hard bent on forming the government in the state only through the additive role of the puppet governor. At this time, it was expected of the Governor to remain impartial and act in the interests of furthering the constitutional goals as has been cited in Pema Khandu vs. Nabam Rebia[4] rather than acting in furtherance of the goals of the ruling party at the Centre.


THE NEED FOR A GOVERNOR

This is not the only case where the governor has acted arbitrarily and in the interests of the Party in power at the Centre. There have been previous instances in the case of Bihar and Rajasthan where the governors have acted in excess of their powers. The question that arises after the events that have been taking place is “Does India need the institution of Governors?”. The Constituent Assembly debates[5] have had discussions on this question. Despite the fact that the governor was to act on advice of ministers it was intended that they further the constitutional goals. The governor was intended to be the constitutional and executive head of the state. In most cases where the Governors have purported to act in excess of this advice they have been accused of acting ultra vires and in several cases have been removed from the post. The instances include the governor of Arunachal Pradesh who was removed in 2016 after he dissolved the party a year before and the Meghalaya governor who resigned after he was alleged to been appointing only women members in his staff. The example in Karnataka[6] in the recent past has shown that the governors continue to skew the democratic process in the favour of the ruling party. They purport to act as puppets of the central government despite the ruling in B P Singhal v. Union of India[7] which held that the governors need not ascribe to the policies of the Union Government. it has been recommended in various reports like the Sarkaria commission[8] and the Punchhi commission report[9] that the governor has powers more than he exercises however these recommendations have not been expected by the Central Government which goes on to establish that the central ruling parties have no intention to expand their independent governance powers. It has been observed by the court in the case of Rameshwar Prasad vs. Union of India[10] which placed reliance on the Sarkaria commission report that the governors have not displayed qualities of impartiality. The Government has been utilising their office for their political ends. They are agents of the Union.

This is not the only problem. The governor is constitutionally given wide discretionary powers. They have the power on the appointment and removal of ministers and the dissolution of the legislature. The post however is undemocratic in nature. The decision making authority is in the hands of an individual who is not elected by the people. They have the powers on lines of the President of India with the authority to declare emergency in the state at his whims and fancy which is contrary to the democratic nature of India.

Similarly, every state spends crores of rupees every year on establishment required for the office of the Governor.


SUGGESTIONS

The recommendation is that given the futile and undemocratic nature of the post the office of the governor should be abolished. The governor is far from an accountable office and is merely acting as the puppet of the ruling party. Even if they were given the authority there is no basis on which they can represent the people of the state. India has borrowed a lot from the British and the governors are another such borrowing. However, this is an office that does not give the desired results if a cost benefit analysis were done. The government spends crores of rupees in the maintenance and protocol of these offices. The purse cannot be spent on offices that are undemocratic at the first instance and having absolutely no power to act in furthering the duties they were expected to perform. It could have been suggested that the governor is indirectly elected similar to the President however this does not serve the purpose. As an intermediary step the government could plan appointing a collective governor for a group of states. This would ensure that the post is phased out in a smooth manner without there being disturbance in the functioning of the institutions.


CONCLUSION

The governors’ post has become controvertible and it is time we let go of it in phased manner. The state has spent much of its bounty on the maintenance of Governor’s post and there have not been equivalent benefits reaped from this post. The purpose for which the Constitution makers introduced the concept of having a Governor for every State has been completely defeated and hence the nation should think about doing away with the post of Governors in each State. The president of India ably supported by the Vice President can take care of advice in matters relating to the constitutional crises.


Bibliography

1.https://www.indiatoday.in/india/story/maharashtra-news-live-updates-supreme-court-devendra-fadnavis-ncp-shiv-sena-congress-bjp-1622568-2019-11-26.

2.https://www.thehindu.com/opinion/lead/why-we-need-governors/article24343299.ece.

3.https://www.thehindu.com/opinion/lead/do-we-need-the-office-of-the-governor/article23971800.ece.

4.http://interstatecouncil.nic.in/report-of-the-sarkaria-commission/.

5.http://interstatecouncil.nic.in/punchhi-commission/.


Footnotes

[1] Maharashtra: Uddhav Thackeray to take oath as CM on November 28, India Today, (Nov 27, 2019), https://www.indiatoday.in/india/story/maharashtra-news-live-updates-supreme-court-devendra-fadnavis-ncp-shiv-sena-congress-bjp-1622568-2019-11-26.

[2] The Indian Constitution, 1950.

[3] Gopalkrishna Gandhi, Why we need Governors, The Hindu, (July 6, 2018),

https://www.thehindu.com/opinion/lead/why-we-need-governors/article24343299.ece.

[4] WP(C) No.7745 of 2015.

[5] Gautum Bhatia, Do we need the office of the governor, The Hindu, (May 24, 2018), https://www.thehindu.com/opinion/lead/do-we-need-the-office-of-the-governor/article23971800.ece.

[6] Gautum Bhatia, Do we need the office of the governor, The Hindu, (May 24, 2018), https://www.thehindu.com/opinion/lead/do-we-need-the-office-of-the-governor/article23971800.ece.

[7] WRIT PETITION (CIVIL) NO.296 OF 2004.

[8] Report of Sarkaria Commission, http://interstatecouncil.nic.in/report-of-the-sarkaria-commission/.

[9] Punchhi Commission, http://interstatecouncil.nic.in/punchhi-commission/.

[10] Writ Petition (civil)  257 of 2005.


Submitted by,

Nishtha Gupta,

Year II, B.A.LL.B. (Hons.),

NALSAR University.


(Image used for representational purpose only. Image Courtesy: https://www.nyoooz.com/category/politics/1413023/fadnavis-gets-bjps-seal-of-approval-to-be-maharashtra-cm-for-2nd-term-even-as-sena-refuses-to-blink/ )



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