Controversial role of Governors in state politics

Recent inconsistencies being highlighted by the media in respect of some of the Governors find their roots in the Constitution. We have a written Constitution, which is the longest-such document in the world in which the role of the Governor is also well-defined; nevertheless, situations continue to arise with a lot of scope for ambiguity in interpretation.

Let us have a close look at the oath of office of the Governor. Article 159 prescribes the oath, the core of which is preserving, protecting and defending the Constitution, and the law, which is similar to the oath prescribed for the President of India in Article 60. This peculiar phraseology is indicative of a proactive expectation. In contrast, the oaths of office prescribed for other constitutional functionaries, including the Prime Minister and the Chief Ministers, focus on “bearing true faith and owing allegiance to the Constitution, which can be comparatively seen to be representing somewhat of a passive situation amounting to going along or remaining in conformity with the provisions.”

The difference is extremely subtle, but only one person in the state is bound by the oath of office to preserve, protect and defend the Constitution and that is the Governor. Such wording of the oath, to an extent, reveals the mind and intent of the framers of the Constitution, who might have envisaged a much wider role for the Constitutional head.

But, in effect, it is not so. In the case of Shamsher Singh vs State of Punjab, the Supreme Court has held that the Governor is bound to act only in accordance with the aid and advice of the Council of Ministers headed by the CM. Also, Article 154(1) makes it clear that the executive power of the state is vested in the Governor, but shall be exercised by him in accordance with the Constitution.

In the case of Nabam Rebia of Arunachal Pradesh, where the Governor went against the advice of the state Cabinet to prepone the session of the Legislative Assembly, the Supreme Court not only passed adverse comments against him, but also declared the President’s Rule imposed in 2015 to be unconstitutional. In the process, the Governor had no option, but to resign.

The notable exceptions for the Governor, where he may not follow the advice of the Cabinet and as interpreted by the Supreme Court, are when the bias of the state government is inherent or apparent as with regards to dissolution of the House, or where the decision of the state Cabinet is wholly irrational, or where the Cabinet because of some incapacity becomes disentitled from giving such advice. A case in point is the advice of the Election Commission on disqualification under Article 192, where also the Governor does not have to follow the advice of the Cabinet, but the advice of the Chief Election Commissioner is binding in such cases.

In our Constitution, undoubtedly, a Governor has greater leeway than even the President. According to Article 74(1), the President shall in the exercise of his functions act in accordance with the advice of the Cabinet, while for the Governor, Article 163 (1) reads as, “There shall be a Council of Ministers with the CM as 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 function or any of them in his discretion.”

Further according to 163 (2), the decision of the Governor in his discretion will be final and the validity of anything done by the Governor shall not be called into question.

A plain reading of the provision would tend to convey that the Governor has unfettered and unlimited powers in certain aspects of governance. However, these discretionary powers are not unlimited and have been spelt out in the Constitution itself as well as interpreted by the Supreme Court. For instance, under Article 161, the Governor has the power to grant pardon, suspend, remit or commute sentences in certain cases, but this power, as brought out in the case of Satpal vs State of Haryana, can be exercised only on the advice of the state Cabinet.

Another important area of the Governor’s functioning, which has often led to controversies, is his role as the Chancellor of universities located in the state. It has to be borne in mind that though the persona is one, but there are two distinct offices, one for the Governor under the Constitution and the other under the respective statutes of the university. The constitutional authority of the state government is quite distinct from that of the university. The Governor while acting as the Chancellor does not act under the advice of the Cabinet as provided for in the Constitution. In the circumstances, the immunity provided to the Governor under Article 361 is not available to him in his role as the Chancellor.

In order to keep the high office of the Governor insulated from unnecessary public controversies, both Punchhi and Sarkaria Commissions had recommended that the Governors should not be burdened with the positions and powers which were beyond their constitutional domain. Such an action would avoid a conflict with the state government.

There are several checks and balances in our Constitution, nevertheless, some grey areas still exist as in case of time limit for giving assent to the Bills. In case the trinity of the Preamble, Fundamental Rights and the Directive Principles are read together in the spirit of democratic principles along with the interpretations of the Supreme Court, there would never be a cause for any ambiguity.

The importance of this fundamental for the Governors can hardly be overemphasised as they are only nominated, while the CMs and ministers are elected representatives of the people. Perhaps, for this reason alone, the oath of office of the Governor also prescribes that he would devote himself to the service and well-being of the people, while no such provision exists in respect of the oath of the CMs and ministers.