Authored by Navya Pandey, a 2nd-year law student at RMLNLU, Lucknow
Introduction
Federalism is a governmental mechanism in which powers and functions are divided between a central government and various other constituent units or regional governments of the country. The most striking feature of a federal system is the clear distribution of powers between different levels of governance, the exercise of those powers within their own jurisdictions and the enjoyment of considerable autonomy in performing those functions. Upon independence, India adopted a federal system with the Central Government holding relatively more powers than the states, to keep the country’s unity intact. However, the states were also granted powers and autonomy in their administration and governance. In S.R. Bommai v. Union of India, the Supreme Court observed that federalism, like secularism, is part of the basic structure of the Constitution.
Indian federalism continues to evolve in the face of changing political contexts and exigencies of time. In the process, it is also confronted by new and perplexing questions. One such question is the issue of gubernatorial overreach i.e., governors going beyond the scope of their constitutional powers and acting as roadblocks in state governance and administration. While gubernatorial activism is not a particularly new occurrence, in recent years, the tussle between governors and state governments has only aggravated. This blog post will delve into this critical issue of gubernatorial overreach, first elaborating on the powers and functions of the governor, then analyzing the recent grounds of conflict and finally suggesting recommendations to help solve this issue.
Constitutional Position of the Governor
After the promulgation of the Government of India Act of 1858, provincial governors acted as representatives of the Crown in British India, operating under the guidance of governors-general. The role and powers of the governor were extensively debated in the Constituent Assembly, with some advocating for more executive powers to be vested with the governor, and others demanding the contrary. Finally, the Assembly decided that the governor’s position would be merely “ornamental” and her powers “limited” and “nominal” Therefore, after independence, governors were made the constitutional heads of the states or provincial units.
Article 153 of the Indian Constitution provides a governor for each state. The governor is constitutionally required to perform certain executive functions like seeking information from the Council of Ministers about state affairs, nominating members to the legislative councils, summoning the House of Legislature, giving assent to bills and promulgating ordinances when the Parliament is in recess. The governor also possesses certain discretionary powers, by way of Art. 163(1) so as to efficiently act as a link between the Centre and the states. These powers must be exercised without the interference of the Council of Ministers. The governor’s discretionary powers can be divided into two categories: constitutional discretion (granted by the Constitution) and situational discretion (to be exercised depending on the needs and circumstances of state politics and governance). These discretionary powers include reserving bills for the President’s consideration, recommending the President’s rule or emergency and choosing the chief minister (“C.M.”) in the absence of a clear majority, among others.
The Web of Influence: The Case of Biased Governors
Political rivalry in state politics is detrimental to the effective and peaceful governance of the states. Over time, multiple issues have given way to conflicted relationships between the governors and the chief ministers of various states. Some of those major issues have been discussed below:
Issue of Appointment
In Tamil Nadu, the tensions began right after the appointment of Mr. R. N. Ravi as the Governor. Before joining politics, Mr. Ravi was an IPS officer and had also served in the CBI. The coalition allies of M. K. Stalin-led Government viewed this with suspicion, questioning the appointment of a retired central government bureaucrat as the Governor of an opposition-ruled state. The appointment of the retired Supreme Court Justice, S. Abdul Nazeer, as the Governor of Andhra Pradesh, also caused an uproar, with the opposition arguing that the appointment of retired judges poses a threat to the independence of the judiciary since it may cause judges to give biased judgements in the hopes of post-retirement rewards. After a change in the ruling dispensation in 2014, the Central Government dismissed nine governors appointed by the previous Government, and the newly appointed governors naturally obliged their political masters.
The governor is neither directly elected by the people nor indirectly elected like the President. The Central government recommends individuals whom the President then appoints as governors. The Supreme Court opined in Rameshwar Prasad v. Union of India that the appointment and removal of governors cannot be arbitrary or politically motivated. If the appointment of the Governor is partial and only officers or sympathizers of the central government are appointed as governors, it will cause a disbalance of power between the Centre and the states. This is a constitutional post, retained after much deliberation and debate by the Constituent Assembly, and its use as a pawn by the Centre significantly harms the federal structure as well as the effective governance of the country.
Withholding Bills Indefinitely
The Tamil Nadu Admission to Undergraduate Medical Degree Courses Bill, 2021 was passed by the Legislative Assembly of Tamil Nadu in September 2021, which sought to admit students to undergraduate medical courses based on their class 12 board exam marks rather than the NEET score. After keeping it pending for months, the Governor Mr. Ravi returned the bill, stating it was "against the interest of the students." After it was passed by the Assembly again, he had to send it to the President for his assent. In Kerala too, the State Government has gone head-to-head with the Governor over excessive delay by him in giving assent to the bills passed by the State Assembly. Similar situations also arose in Punjab and Telangana in the past.
Article 200 of the Constitution states that when a bill is presented to the governor, she may either give the bill her assent or return it for reconsideration by the state assembly “as soon as possible”. If the legislative assembly passes a bill again, then the governor is bound to give her assent. She may also reserve a bill for the consideration of the President, but only if it endangers the position and powers of the High Court of the state or goes against the Constitution or the larger interest of the State. In Thakur Amar Singhji v. State of Rajasthan, the Supreme Court affirmed that the governor’s role is only executive and not legislative and ruled out the possibility for the governor to exceed the scope of his constitutional powers. Further, in Nabam Rebia and Bamang Felix v. Deputy Speaker and Others, the Constitution Bench held that under Article 163(1) of the Constitution, the governor can exercise only such functions in her own discretion which she is expressly required to, by or under the Constitution.
In State of Telangana v. Governor of Telangana, the 2-Judge Bench of the Supreme Court observed that governors should either give assent to bills or return them for reconsideration “as soon as possible” as per Proviso 1 to Article 200 of the Constitution.
This view was also taken by the Apex Court in the State of Punjab v. Governor of Punjab, wherein the Court clearly stated that the governor is a symbolic head and cannot withhold action on bills passed by the State Legislature. The Kerala government also took the matter to the Supreme Court, wherein the Supreme Court observed in State of Kerala v. Hon’ble Governor for the State of Kerala that the Governor had no reason to keep the bills pending for unreasonably long periods and disrupt the democratic law-making procedure of the state.
The governor should largely refrain from applying legislative mind in giving assent to bills since it does not fall within the ambit of his discretion. If she feels that a bill needs rethinking, she can send it back for consideration, but this should happen swiftly. If there is a patent unconstitutionality in a bill which would violate the rights of individuals or turn against the welfare of the state, then the governor can request the assembly to reconsider. However, keeping bills pending for inordinate periods invariably slows down the governance and executive functioning of the concerned state.
Power to Dismiss Ministers
In June 2023, the Tamil Nadu Governor, Mr. Ravi, dismissed a minister of the state cabinet, Mr. Senthil Balaji, on the ground that his continuation in the cabinet would lead to a “breakdown of the constitutional machinery”. Mr. Balaji had a tainted reputation due to corruption charges and criminal cases against him. Although the Madras High Court has now convicted him, the dismissal took place when the charges against him had not been proven, and the decision of dismissal rested with the Chief Minister M. K. Stalin. However, Mr. Ravi decided to take the matter into his own hands and did not consult Mr. Stalin before dismissing the minister. Earlier in Kerala, in October 2022, the withholding of bills by the Governor Mr. Arif Mohammed Khan, was criticized by some cabinet ministers of the State Government, in response to which the Governor threatened to sack the concerned ministers for “lowering the dignity of the office of the governor” by withdrawing his pleasure under Article 164 of the Constitution.
The Issue of Delhi
The question that arises in this context is whether governors have the power to sack ministers by withdrawing their “pleasure”. The doctrine of pleasure has been derived from the English Common Law. As per Article 164, the governor shall appoint as C.M. that candidate who is able to command a majority of votes, and the C.M. would then choose other candidates to join his cabinet. Therefore, in practice, the ‘pleasure’ rests with the C.M. and refers to his power to dismiss a minister from his cabinet. Therefore, the governor does not have any real say as far as the composition of the cabinet of a state government is concerned, so long as the government retains the majority.
In Mahabir Prasad v. Prafulla Chandra, the question revolved around the nature of the governor’s pleasure under Article 164(1). The Calcutta High Court held that the governor's pleasure under Article 164(1) is subject to 164(2). This means that the withdrawal of the governor's pleasure must coincide with the withdrawal of support to the ministry by the state assembly. This view was also endorsed by the Report of Justice Sarkaria Commission. Further, in Shivraj Singh Chauhan v. Speaker of Madhya Pradesh Assembly, the Supreme Court held that the powers bestowed upon the governor must be exercised on the aid and advice of the Council of Ministers.
In 2016, obliging governors of Uttarakhand and Arunachal Pradesh – states ruled by opposition parties – reported that the constitutional machinery in these states had broken down, leading to the Central Government dismissing the state governments and assuming direct rule. In both cases, the Supreme Court intervened to restore the dismissed governments. The ministers of state governments are elected representatives of the people, wielding actual powers and responsibilities. Whereas the governor is merely a ceremonial head, ensuring that the state machinery runs smoothly and the due procedure of law is followed. Therefore, if a governor arbitrarily assumes the power of dismissing a minister without the advice of the state government, not only does she go beyond the constitutionally set threshold, but also against the dignity of her office, whose entire objective is to maintain a balancing act between the Centre and the states.
Most recently, the tensions between the Delhi Government and the Lieutenant Governor (L.G.) have been most severe, with the deputy C.M. Manish Sisodia even calling for the removal of the office of governor. In Delhi, the relationship between the state government and L.G. has been mired in conflict for long, reaching its climax with the enactment of the National Capital Territory of Delhi Amendment Act, 2023 (“Delhi Services Act 2023”). The Delhi Services Act, 2023 has created the National Capital Civil Service Authority (NCCSA) comprising Delhi’s Chief Secretary, its Principal Home Secretary, and the C.M. The NCCSA has to give recommendations to Delhi’s L.G. on matters relating to the appointment, transfer, and posting of all Grade A bureaucrats in the Delhi government. As per the Act, Centre-appointed L.G. can also create and abolish bureaucratic posts in the Delhi government. As the final arbiter in administrative matters, the L.G. has the power to approve NCCSA’s recommendations.
The Delhi Services Act significantly enhances the Lieutenant Governor's power over the Delhi government, allowing him the final authority on bureaucrat appointments, transfers, and postings. While the Supreme Court upheld the validity of the Delhi Services Act 2023, it observed that a democratically elected government must have the power to control its own administration. The Act undermines Delhi's autonomy and federal principles by centralizing power, vesting greater powers in the hands of a Centre-appointed L.G. There exists a unique federal relation between the Centre and NCT of Delhi but this Act significantly shifts the balance of power in the Centre’s favour. Such attempts effectively undermine the principles of representative democracy and federalism which are the pillars of our constitutional order.
Recommendations
Addressing the issue of conflicts between the governors, backed by the Central Government and the state governments needs comprehensive and well-rounded legislative solutions. Here are some recommendations to deal with these issues:
Fair Appointment of Governors
When individuals who have strong bonds with the Centre are appointed as governors, it often leads to them superimposing the Centre’s political ambitions on the policy initiatives of the state government, resulting in a virtual tug-of-war for power. Since the governor acts as a vital link between the Centre and states, her appointment should be based on a consensus between the state government and the central government. The appointment of persons closely connected with the politics of the concerned state and those who have previously occupied public office, like retired judges and central government officials, should be avoided. A committee can be established, comprising members nominated by the state and central government to jointly decide on one name which is agreeable to both parties.
Bar on Occupying Public Offices After Retirement
A survey conducted by the Sarkaria Commission revealed that more than half of the appointed governors are either politicians who have been defeated in elections or who wish to join active politics. The appointment of individuals who already have a political career or intend to find ground in the political arena can always turn out to be controversial since they might try to appease the Central government in the hopes of political benefits after they have served their term. People who have served as governors can be barred from assuming any political office after the end of their term. This will ensure that they work in a non-partisan manner since they will have no incentive to meddle with the state government’s affairs unnecessarily in the hopes of future rewards and prioritising the welfare of the state.
Impeachment of the Governor
As per Article 156, the governor shall hold office at the pleasure of the President. Generally, a governor is appointed for a term of 5 years, but she can be removed from office if the President decides to withdraw his pleasure. However, this withdrawal of pleasure can only happen at the advice of the Council of Ministers. Therefore, it is actually the Council of Ministers that wields the power to remove a governor. The state governments should also have the power to impeach a governor if she transgresses the boundaries of her constitutional powers, acts adversarial to the state’s interests and turns a deaf ear to the state government’s grievances. This will ensure that the governor does not become an adversary of the state government and keeps a check on the exercise of her functions.
Putting a Time Limit on Withholding of Bills
The governor has the power to withhold assent to a bill or refer it to the President under Article 200, but due to the absence of a clearly prescribed time limit to preserve her assent, the governor can withhold a bill indefinitely, as is evident from the cases of Tamil Nadu, Kerala, Punjab, etc. This creates a deadlock which runs the risk of stretching indefinitely. The governor possesses discretionary powers, which must be exercised in critical situations. However, a bill passed by the state legislature represents the will of the people since it is drafted by the people's representatives, at least in theory. By sitting on the bill, the governor subverts the will of the people and creates a situation of stagnancy, where the bill can neither be amended nor implemented. Introducing a time frame within which the governor must mandatorily act on a bill will hasten the process of implementing legislation and reduce the interference of the governor with an intent to serve the partisan interests of the central government. Reference of the bill to the President should also be resorted in extreme cases to avoid unnecessary procedural delays.
Facilitate Cooperation
The main role of the governor should be to facilitate effective communication between the Union and state governments and to ensure that they cooperate on various issues and don’t turn hostile to each other. The governor must always remain fair and non-partisan in all situations and work in the best interests of the state.
Conclusion
The governor acts as a vital link between the Centre and the states. In ensuring that the spirit of cooperation is not disrupted, the governor must act as a fair orchestrator and ensure that one does not try to dominate the other.
Dr. A.P.J. Abdul Kalam in his address during the Governor’s Conference of 2005 remarked,
While there are many checks and balances provided by the Constitution, the office of the Governor has been bestowed with the independence to rise above the day-to-day politics and override compulsions either emanating from the central system or the state system.
The biased appointments of governors, withholding of bills for elongated periods and arbitrary dismissal of ministers are some of the contemporary issues which plague the relations between state governments and governors in today’s time. It is imperative that governors act without being influenced either by the Centre or the states and maintain the sanctity of India’s federal structure. This will help build a strong relationship of trust between these two federal units of the executive, strengthen India’s unity and move India further towards the path of development.