Governor-govt discord and the power of the unwritten word

THE Supreme Court (SC), by stepping in at the right time, has been able to avert a constitutional crisis which had been in the making for quite some time. During the course of various hearings in recent months, many signals had emanated from the apex court but none was heeded, resulting in a serious rap on the knuckles and a loss of face for some occupants of the high office of Governor.

Though we have the world’s longest written Constitution, ambiguities continue to influence events. Mostly, it is misinterpretation, but occasionally, it is also the power of the unwritten word. The usage of the words ‘as soon as possible’ in Article 200 has been the source of mischief in the present context. The SC, in an earlier case, interpreted this phraseology to imply giving a reasonable time limit of three months to the Governor, but apparently, no attention was paid. Besides the apex court, three commissions — Sarkaria (1987), Venkatachaliah (2002) and Punchhi (2010) — have all recommended prescribing a fixed time limit for the Governors to take a decision, but in the absence of an amendment to the Constitution, the unwritten word has often prevailed.

At its root is Article 163(2), according to which, “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.” This would tend to make the office of the Governor very powerful, even more than that of the President, who is, as per Article 74(1), bound by the advice of the Cabinet. No such parallel provision exists for the Governor but for Article 163(1), which only mentions that the Council of Ministers headed by the CM has to be there to aid and advise the Governor in all his functions, except where he is required under the Constitution to exercise his discretion. However, in the case of Shamsher Singh vs State of Punjab, it was clarified by the SC that ‘aid and advice’ is a constitutional restriction on the exercise of executive power of the state by the Governor. This was also made clear in the Arunachal case of Nabam Rebia vs Deputy Speaker, where the Governor’s actions were pronounced as ultra vires, resulting in his resignation.

Nevertheless, the Governor has the discretionary power within the contours of the Constitution to dismiss the state government or suspend or dissolve the state Assembly. Under Article 356(1), the report of the Governor to the President can obviously not be on the advice of the Cabinet. Further, a Governor may not follow the advice of the Cabinet in case it is prima facie irrational or where a bias is inherent or manifest.

Another important area where the Governor enjoys the power of the unwritten word is the appointment of the Chief Minister. Article 164 only states that the Chief Minister is to be appointed by the Governor and other ministers will be appointed by him on the advice of the CM. The role of the Governor assumes importance in case any political party fails to secure absolute majority. Though the Constitution is silent on the procedure to be followed in such cases, Justice Sarkaria and Justice Punchhi, in their recommendations on constitutional reforms, have prescribed the norms to be followed. Besides, over time, healthy conventions and precedents have evolved. But in some cases, Governors, largely due to political considerations, have failed to observe these norms and conventions. Such actions often give rise to horse-trading and defections, words which are of a relatively recent origin and did not exist in the dictionary of the Constituent Assembly.

Constitutionally, under Article 163(2), a Governor does have a few discretionary powers which he can exercise without the advice of the state Cabinet. Some of these pertain to Article 371A regarding special provisions for Nagaland and other northeastern states. Similar powers exist in respect of the Schedule VI areas. In case a decision has to be taken under a particular Act and not under the Constitution, the Governor can do so independently, without requiring advice from the Cabinet.

The same principle would apply to his role as chancellor of various universities in the state. A university, under its statute, is a corporate body and the Governor as a chancellor would have no immunity under Article 361(1) of the Constitution. This also leads to the debate whether the Governor should be a chancellor at all.

The Governor also enjoys a unique position as he is neither answerable to the legislature nor Parliament. The President of India can be impeached, but there is no such provision in respect of a Governor. He serves only at the pleasure of the President, which actually means the Central Government.

Conceptualised on the basis of the Government of India Act, 1935, provisions of the office of the Governor were comprehensively debated in the Constituent Assembly (CA) and tempered suitably to meet the requirements of a democratic Constitution. The idea was to transfer power to the people and their representatives rather than remaining centralised in the office of the Governor. At one stage during the debate in the CA, there was a proposal that the Governors should be elected. In response, BR Ambedkar’s commented: “There is no function which he is required to discharge either in his discretion or his individual judgment. Knowing fully well that powers of the Governor were so limited, so nominal, his position so ornamental that very few would come forward to stand for an election.” It was also thought that the Governor should not become a rival to the CM or a parallel power centre. Ultimately, the CA did not approve of the election route and placed stringent limitations on the Governor’s powers and functioning.

In the end, let us not forget that a Governor is also bound by his oath of office, the core of which reads: “… to the best of my ability preserve, protect and defend the Constitution and the law.”