Tamil Nadu. Kerala. Delhi. Telangana. Punjab. West Bengal. Maharashtra (until recently). These states have seen a lot of news smouldering in their Raj Bhavans and Governors overstepping their mandates. From trying to topple a democratically elected state government in Maharashtra to interfering in the functioning of elected governments; from withholding assent for Bills passed by the House and going off-script in the Tamil Nadu assembly to holding political and provocative press conferences in Kerala, the list of improprieties is long.

What is the role of the Governor in our Constitution?

Articles 153 to 163 of the Constitution provide for a Governor appointed for each state by the President, who exercises the executive power of the state. Under Article 164, the Chief Minister is appointed by the Governor, and other ministers are appointed by the Governor on the advice of the Chief Minister. The Governor thus has a dual role, as the representative of the union government in the state, and as the constitutional head of the state acting on the advice of the Chief Minister.

This makes it sound like this constitutional functionary has wide, sweeping powers. But the interpretation is not so. A seven-judge bench of the Supreme Court in the Shamsher Singh vs. State of Punjab case, as far back as 1974, clarified that Governors are to exercise almost all their powers on the Chief Minister’s advice and are in no circumstances to conduct a parallel government.

Ordinarily, the few instances when a titular head can exercise his discretion are in grave situations like a hung election result or if the council of ministers loses the confidence of the House. However, while the President has this limited set of discretionary powers, the Governor has powers such as reserving Bills for the President’s consideration, recommending President’s Rule in a state, and calling on the Chief Minister to seek information on the functioning of the state. In the recent past, some Governors seem to have taken this too seriously, even calling for information directly from the civil service officers of the government.

A major concern arises from the fact that the Governor is appointed by the President. There are no grounds mentioned in the Constitution for the removal of a Governor and she holds her position at the pleasure of the President. This, of course, means that the union government has the power to decide who will be the highest constitutional authority in each of the states. And we have seen what happens if it is a state with a non-BJP Chief Minister.

We live in an era where a politician campaigning for the BJP in Kerala is appointed Governor of Mizoram and then called back to Kerala to fight another election. What happened to independent, dignified, constitutional gubernatorial functioning?

The Ranjit Singh Sarkaria Commission of 1983 is considered the gold standard on Union-State relations. It recommended that Governors be eminent persons from outside the state who were not in active politics immediately before their appointment. They should be appointed in consultation with the Chief Minister, Vice President and Lok Sabha Speaker, and their term of office should be virtually guaranteed to protect their independence. Finally, it also suggested that Governors be ineligible for positions post retirement. Sadly, most of these recommendations are junked.

Even the Constituent Assembly debates show that many leaders considered Governors to be vestiges of India’s colonial past. Rohini Kumar Chaudhuri stated that it seemed as if the Governor in the Constitution was the same Governor who represented the British ruler. HV Kamath was concerned that even if the Governor is given no express functions to perform, he will be able to prevent the elected government from functioning by using his duties of granting approval. Many members pointed out that the words of the Articles related to Governors were almost a reproduction of sections in the Government of India Act of 1935.

To ensure the independent functioning of Governors, there is a need to revise Article 157 of the Constitution and pinpoint more specific criteria and qualifications for the appointment of Governors. Since the Article only requires them to be Indian citizens over 35 years, the field is left too wide for political appointees. Let’s take the advice of BR Ambedkar: “The Constitution is but a skeleton, the flesh has to be put by all of us everyday.” 

[This article appeared on NDTV.com | Wednesday, January 18, 2023]