Gubernatorial Governors

The Constitution of India mandates that any Indian citizen over 35 can be made a Governor. Article 163 of the Constitution further says that “there shall be a Council of Ministers with the Chief Minister at the head to aid and advice the Governor in the discharge of his functions…”

If we examine the recent appointments and the present incumbent Governors in the different States in light of this Article of the Constitution, serious questions arise regarding their role and importance. The Governors’ position is one where political judgments often need to be made. However, today there are such an overwhelming number of former civil servants, police and army officers in these positions, that it is doubtful if correct political assessments and judgments are being made. This important constitutional post has become the resting place of yes men who are close to the ruling dispensation. Burdensome and ailing political leaders and politicians who have to be abandoned for their inefficiencies, are bid good riddance and appointed as Governors. Such political games in the selection and appointment of Governors have sadly become the order of the day, across the entire spectrum of political parties.

A stark feature in the present set up is that a fairly large number of retired police officers are now occupants of Raj Bhavans.What is even more worrying is that most of them are retired Directors of the Intelligence Bureau or the Central Bureau of Investigation. Leave alone the wisdom of elevating policemen as constitutional heads in a civilian democracy, such appointments strike at the very root of good governance and imperative police reforms.

After the recent gubernatorial changes, as many as 15 of the occupants of Raj Bhavans are former civil servants and police officers. There are four ex-IAS officers, eight former IPS officers, and an ex-Army chief . The ex-National Security Guards chief Nikhil Kumar is now Governor of Kerala. The former Director of the Intelligence Bureau, M.K. Narayanan is the Governor of West Bengal while another former Director of the same agency ESL Narasimhan is holding the fort in Andhra Pradesh. The ex-NSG chief Ranjit Shekhar Mooshahary is now Governor of Meghalaya. Gurbachan Jagat, the Governor of Manipur was the former DGP of Jammu & Kashmir.

Former Army Chief Gen. J J Singh is now the Governor of Arunachal Pradesh, while the Lieutenant-Governors of Andaman and Nicobar and Puducherry respectively are Lt. Gen. Bhopinder Singh and Iqbal Singh.

Apparently the security chiefs who handled the protection of the first family, i.e. the Gandhi’s, have been singled out and rewarded. The Central Bureau of Investigation chief Ashwani Kumar, who had handled the security of Rajiv Gandhi, has been appointed as the Governor of Nagaland. The former CBI Director, who had retired several years earlier, had evidently quietly nurtured his political contacts over the years. Even though there was a big hue and cry by the other political parties, he was pushed through. Former IPS officer, B.L. Joshi, who headed Indira Gandhi’s security team, is now Governor of Uttar Pradesh. The ex-Special Protection Group director, who has also been in the IB for years, Bharat Vir Wanchoo is now Governor of Goa. He was earlier in charge of Sonia and Rajiv Gandhi’s security.

Four former Secretaries to the Union government, all from the elite IAS, preside over Jammu and Kashmir, Chhattisgarh, Sikkim and Delhi. These appointments have certainly not been done because of the appointees’ expertise in the constitutional mechanism but rather because they have been a set of ‘yes men’, officers who were always ready to comply with the diktats of the ruling dispensation.

The appointment of former cops will have serious implications for the rule of law and the criminal justice delivery system. If we take case of the CBI, the country’s premier investigation agency has a successful conviction rate of less than 10 per cent. The average time it takes to conclude a criminal case is a quarter of a century. Charges have repeatedly been leveled that the CBI is getting increasingly politicized and has become a veritable extension of the ruling political party.

Various parliamentary committees have occasionally questioned the Directors of CBI about its dismal record. The CBI too had reiterated that the agency should be “freed” of government control and granted ‘full autonomy’ as political control stifles its conduct of free and fair investigation. One former Director even went to the extent of advocating a constitutional status for the office. However all this talk of “government control” and “political interference” is plain doublespeak, meant only for public consumption. Behind the veil, most of the police officers are engaged in hobnobbing with their political masters for the plum postings that would come later after they retire.

This indeed is a very unhealthy trend. It compels the incumbent to remain beholden to the political party that has favored his selection for the coveted post. In such circumstances, it appears doubtful as to how a Governor can display impartiality and fairness in discharging his duties. The rising trend of Chief Ministers who are complaining about the Governor’s office in the state is an indicator of the offshoot of this misuse. The increasingly fraught relationship between governors and chief ministers can upset the fine balance of power in India’s federal structure. Governors are appointed directly by the President. The president in turn, according to the Constitution, acts on the advice of the council of ministers headed by the Prime minister. In effect, therefore, governors are appointed by the central government.

The problem is more compounded in a federal system like India’s where at any given time nearly half the states are ruled by the opposition. The system is open to abuse. Between 1966 and 1977, Indira Gandhi imposed President’s rule 39 times in opposition-ruled states. In retaliation, the Janata Party government imposed President’s rule 11 times between 1977 and 1979 in Congress-ruled states.

The Supreme Court is currently deciding on a PIL filed by a group of retired police officers on the issue of politicization of the forces. They have demanded the implementation of the Police Commission report, but only selectively. It would be pertinent to note that the commission’s report was crafted by policemen themselves and was, therefore, a largely self-serving exercise. The Government of India had consulted the state governments and rejected the report way back in the Eighties. According to the findings of the commission, the main reason for politicization of the force was the tendency of some senior police officers to “hobnob” with ruling politicians for post-retirement rewards. It is for this reason that the commission had suggested that post-retirement appointments should be banned by law. It was conscious of the fact that any arrangement, that is less stringent, would be subverted by these ‘resourceful’ police officers.

The actions of other incumbents too haven’t always been in keeping with the grace and dignity of the office. Two serving governors, Ram Naresh Yadav (Madhya Pradesh) and Aziz Qureshi (Uttarakhand), publicly declared their gratitude to Congress president Sonia Gandhi for their appointment. Bhardwaj, of course, went to the extent of saying he was a Congressman first, and then a Governor.

Governorship should not be considered as an extension of party politics. Misuse of the institution of the Governor has created a deep suspicion and distrust in the federal structure and affected centre-state relationships. The framers of the Constitution were quite conscious of the possibility of Centre-State conflicts, so the powers and jurisdiction of each have been carefully defined and demarcated. It has been provided for that the state governments have to comply with the laws enacted by Parliament. The Governor is there to watch the interests of the Centre. His job is to check arbitrariness of the council of ministers and administrative machinery of the state.

In their colonial hangover, the framers of the Indian constitution invented the role of state governor to act as a conduit between the ceremonial head of state (the president) and the chief minister of each state. As the president’s eyes and ears in the country’s diverse and far-flung states, governors at first played a useful role. They were mostly apolitical. Presidents of the caliber of Rajendra Prasad and S Radhakrishnan ensured that the young fissiparous democracy of India was kept glued together by not only the checks and balances written into the Constitution, but the wisdom of its apolitical presidents and governors.

---

 SARKARIA COMMISSION ON ROLE OF THE GOVERNOR

By Niharika Sharma

---

The Government of India constituted the Sarkaria Commission under the Chairmanship of Justice R.S. Sarkaria with Shri B. Sivaraman and Dr. S.R. Sen as its members on June 9, 1983 so as to scrutinise the existing arrangements between the Union and the States in the changed socio-economic scenario. With regard to the term of reference of the commission as pronounced in the government’s notification, it said: “The Commission will examine and review the working of the existing arrangements between the Union and States in regard to powers, functions and responsibilities in all spheres and recommend such changes or other measures as may be appropriate… . In examining and reviewing the working of the existing arrangements between the Union and the States and making recommendations as to the changes and measures needed, the commission will keep in view the social and economic developments that have taken place over the years and have due regard to the scheme and framework of the Constitution which the founding fathers have so sedulously designed to protect the independence and ensure the unity and integrity of the country which is of paramount importance for promoting the welfare of the people.” The commission after holding several discussions, examining many studies, extracting information and after detailed considerations submitted its report in January 1988. We reproduce below excerpted part of the commission’s report on “Role of the Governor”.

ROLE OF THE GOVERNOR

The role of the Governor has emerged as one of the key issues in Union-State relations. The Indian political scene was dominated by a single party for a number of years after Independence. Problems which arose in the working of Union-State relations were mostly matters for adjustment in the intra-party forum and the Governor had very little occasion for using his discretionary powers. The institution of Governor remained largely latent. Events in Kerala in 1959 when President’s rule was imposed, brought into some prominence the role of the Governor, but thereafter it did not attract much attention for some years. A major change occurred after the Fourth General Elections in 1967. In a number of States, the party in power was different from that in the Union. The subsequent decades saw the fragmentation of political parties and emergence of new regional parties. Frequent, sometimes unpredictable realignments of political parties and groups took place for the purpose of forming governments. These developments gave rise to instability in several State Governments. As a consequence, the Governors were called upon to exercise their discretionary powers more frequently. The manner in which they exercised these functions has had a direct impact on Union-State relations. Points of friction between the Union and the States began to multiply.

The role of the Governor has come in for attack on the ground that some Governors have failed to display the qualities of impartiality and sagacity expected of them. It has been alleged that the Governors have not acted with necessary objectivity either in the manner of exercise of their discretion or in their role as a vital link between the Union and the States. Many have traced this mainly to the fact that the Governor is appointed by, and holds office during the pleasure of the President, (in effect, the Union Council of Ministers). The part played by some Governors, particularly in recommending President’s rule and in reserving State Bills for the consideration of the President, has evoked strong resentment. Frequent removals and transfers of Governors before the end of their tenure have lowered the prestige of this office. Criticism has also been levelled that the Union Government utilises the Governors for its own political ends. Many Governors, looking forward to further office under the Union or active role in politics after their tenure, came to regard themselves as agents of the Union.

CONSTITUTIONAL PROVISIONS AND THEIR SCOPE

The Constitution as it finally emerged, envisages that normally there shall be a Governor for each State (Article 153). The Governor is appointed by the President and holds office during his pleasure [Articles 155 & 156(1)]. Article 154 vests the executive power of the State in the Governor who exercises it either directly or through officers subordinate to him in accordance with the Constitution. Under Article 163(1), he exercises almost all his executive and legislative functions with the aid and advice of his Council of Ministers. Thus, executive power vests theoretically in the Governor but is really exercised by his Council of Ministers, except in the limited sphere of his discretionary action.

Article 167 of the Constitution imposes duties on the Chief Minister to communicate to the Governor all decisions of the Council of Ministers and proposals for legislation and such other information relating to the administration of the affairs of the State and proposals for legislation as the Governor may call for; and “if the Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council’. The information which the Governor is entitled to receive under clause (b) of the Article, must not only be related to the affairs of the State administration, but also have a nexus with the discharge of his Constitutional responsibilities.

The options available to the Governor under Article 167 give him persuasive and not dictatorial powers to override or veto the decisions or proposals of his Council of Ministers relating to the administration of the affairs of the State. At best, “they are powers of giving advice or counselling delay or the need for caution and they are powers which may be used to build bridges between the Government and opposition”.

The efficacy of this advisory role of the Governor depends, in no small measure, on the respect which the incumbent of the office inspires for his wisdom and integrity in the mind of his Chief Minister and Ministers, in particular, and the legislature and the public, in general.

The Governor does not exercise the executive functions individually or personally. The State Government at various levels takes executive action in the name of the Governor in accordance with the rules of business framed under Article 166(3).

Hence, it is the State Government and not the Governor who may use or be sued in respect of any action taken in the exercise and performance of the powers and duties of his office [Articles 361, 299(2) and 300].

In a very limited field, however, the Governor may exercise certain functions in his discretion, as provided in Article 163(1), which reads as follows:

(1)          There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

(2)          If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.

(3)          The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired in to in any court.

The first part of Article 163(1) requires the Governor to act on the advice of his Council of Ministers. There is, however, an exception in the latter part of the clause in regard to matters where he is by or under the Constitution required to function in his discretion. The expression “required” signifies that the Governor can exercise his discretionary powers only if there is a compelling necessity to do so. It has been held that the expression “by or under the Constitution” means that the necessity to exercise such powers may arise from any express provision of the Constitution or by necessary implication. We would like to add that such necessity may also arise from rules and orders made “under” the Constitution.

Thus, the scope of discretionary powers as provided in the exception in clause (1) and in clause (2) of Article 163 has been limited by the clear language of the two clauses. It is an accepted principle that in a parliamentary democracy with a responsible form of government, the powers of the Governor as Constitutional or formal head of the State should not be enlarged at the cost of the real executive, viz. the Council of Ministers. The scope of discretionary powers has to be strictly construed, effectively dispelling the apprehension, if any, that the area for the exercise of discretion covers all or any of the functions to be exercised by the Governor under the Constitution. In other words, Article 163 does not give the Governor a general discretionary power to act against or without the advice of his Council of Ministers. The area for the exercise of his discretion is limited. Even this limited area, his choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution.

The Administrative Reforms Commission in its Report (1969), observed that the Governor as head of the state should by his impartiality and sense of fair-play, command the respect of all parties in his State. Much has happened since then. Nonetheless, these observations remain as valid today as they were then.

MAIN FACETS OF THE GOVERNOR’S ROLE

The three important facets of the Governor’s role arising out of the Constitutional provisions, are:

(a)          as the constitutional head of the State operating normally under a system of Parliamentary democracy;

(b)          as a vital link between the Union Government and the State Government; and

(c)           as an agent of the Union Government in a few specific areas during normal times [e.g. Article 239(2)] and in a number of areas during abnormal situations [e.g. Article 356(1)].

Criticism of the role of the Governor as to:

There is little controversy about (c) above. But the manner in which he has performed the dual role, as envisaged in (a) and (b) above has attracted much criticism. The burden of the complaints against the behaviour of Governors, in general, is that they are unable to shed their political inclinations, predilections and prejudices while dealing with different political parties within the State. As a result, sometimes the decisions they take in their discretion appear as partisan and intended to promote the interests of the ruling party in the Union Government, particularly if the Governor was earlier in active politics or intends to enter politics at the end of his term. Such a behaviour, it is said, tends to impair the system of Parliamentary democracy, detracts from the autonomy of the States, and generates strain in Union-State relations.

Use of Discretion:

(i) In Choosing Chief Minister

Soon after an election when a single party or a coalition emerges as the largest single party or group, there is no difficulty in the selection and appointment of a Chief Minister. However, where no single party or group command absolute majority, the Governor has to exercise his discretion in the selection of Chief Minister. In such a situation, the leader of the party or group which, in so far as the Governor is able to ascertain, has the largest support in the legislative Assembly, may be called upon to form the Government, leaving it to the Assembly to determine the question of confidence. This procedure leaves little scope for any allegation of unfairness or partisanship on the part of the Governor in the use of his discretion. Such a situation may also arise when a Ministry resigns after being defeated in the Assembly or because it finds itself in a minority.

(ii) In Testing Majority

Governors have employed various ways to determine which party or group is likely to command a majority in the Legislative Assembly. Some have relied only on lists of supporters of rival claimants produced before them, as in Bihar (June 1968) when the Congress Party was called upon to form a government. In some cases, physical verification by counting heads was carried out as in the case of Gujarat (1971), when the leader of the newly formed Congress (C) Party was called upon to form the government. Similarly, in Uttar Pradesh (1967), the leader of the Congress Party was appointed Chief Minister after the Governor had physically counted his supporters. In the case of Rajasthan (1967), physical verification was resorted to and the leader of the Congress Party was called upon to form the Government; but, in determining the relative strengths of the Congress Party and Samyukta Dal, the Independents were ignored. If they had been taken into account, the result might well have been different. Further, when the leader of the Congress Party did not form the government, the leader of the opposition group was not called upon to do so; instead, President’s rule was imposed.

---

The decline in standards began during Indira Gandhi’s prime ministership when the office of president was regularly misused. In June 1975, President Fakhruddin Ali Ahmed, instead of opposing the prime minister’s advice to proclaim the draconian Emergency, rubber-stamped it. As politics became more partisan, so did presidents and governors. The rot percolated down from the top.

How do we fix what is now a systemic problem? The solution lies in the rules framed to appoint governors. An amendment to articles 155 and 158 of the Constitution should mandate that a governor must not have held political office for at least five years before being appointed and be barred from holding public office permanently after demitting his gubernatorial post. This single amendment will transform the quality of interaction between elected chief ministers and selected governors.

The 1,600-page Sarkaria commission report submitted to the government in 1988 had recommended watered down strictures on the eligibility of a governor who had held prior political office. Even this diluted recommendation was never implemented. The recommendations of the Venkatachaliah commission report (2002) and the Punchhi commission report (2010), which dealt with Centre-state relations, the role of governors and the importance of the Inter-State Council to resolve disputes, have been similarly ignored by successive governments.

The first president of India, Rajendra Prasad, had warned: “It is necessary that the people of a State should have full confidence in a supreme non-partisan institution like that of Governor.” Amending the constitutional provision under which governors are appointed will restore non-partisanship to our federal polity. Additionally, distinguished leaders from the judiciary, law, business and academia – rather than politicians seeking pasture or rehabilitation – should be considered for appointment to state Raj Bhavans.

The Punchhi Commission in 2010 agreed with the 1988 Sarkaria Commission that governors be appointed from among eminent people in different walks of life and that they should not be from the state they are posted in.

The founding fathers of the Indian Constitution added Article 356 to the Constitution to make the Centre exceedingly powerful so that its will could be imposed upon the ill will of any regional leader. However this has been often misused to fulfill political purposes. In its report submitted to the Union Government on October 27, 1987, the Sarkaria Commission focused upon the role of the Governor and gave the following recommendations on the appointment of the Governor.

1. a) He should be a man of some eminence in some field.
2. b) He should not belong to the State where he has to serve as the Governor.
3. c) He should be a detached figure with little record of participation in the local politics of the State.
4. d) He should be a person who has not taken too great a part in politics generally, particularly in the recent past.
5. e) Preference should continue to be given to the minority groups as hitherto.
6. f) It is desirable that a politician from the ruling party at the Centre should not be made the Governor of a State run by another party or a coalition of parties.
7. g) Article 155 of the Constitution should be suitably amended to ensure effective consultation with the Chief Minister of a State while appointing a Governor in that State.
8. h) The Vice-President of India and the Speaker of the Lok Sabha should also be consulted while making this appointment though this consultation should be ‘confidential’, ‘informal’ and not a matter of constitutional obligations.

In the recent past Indian polity has seen a sea change in the nature of the multi party system. This shift from one-party dominance to a multi-party system has made political institutions more democratized. This process of democratization is also making its impact upon the role of the Governor. As the multiparty system has replaced one-party dominance; the party which is in the power, cannot afford to use the Governor as its instrument.

The pomp and splendor of the Raj Bhavans cost the exchequer a tidy amoun, and the person occupying it is seen as the Grand Mughal. There should be a gross reduction in the expenses of Governors. While the dignity and status of the Governor have to be maintained, the Colonial pattern of pageantry has to be severely cut down. The maintenance of expensive establishments at different places for the seasonal stay of the Governors, the expenditure over addresses of welcome, and all kinds of traditional customs have to be curtailed.

The post of the Governor should not be an avenue for the party in power to favour its own party men. The dignity and honour of the Head of the State can be retained only when persons of high character, great mental calibre and meritorious service are appointed. The Governor’s post should not be converted into a coveted job for party men or an asylum for those defeated in elections. It should be occupied by those who have earned a name for integrity and
public service.

By Anil Dhir