Context
The article critically examines the Governor’s powers and limitations in light of recent actions by the Governor’s office that have garnered national attention for all the wrong reasons.
Relevance
GS Paper 2: Functions and responsibilities of the Union and the States, issues and challenges pertaining to the federal structure.
Mains Question
Any office that exercises discretionary power has a moral obligation to be objective and impartial. The Governor’s powers, on the other hand, are frequently fraught with controversy. Analyze. (250 Words)
Background
- Recent controversy: According to a recent tweet from the Kerala Governor’s office, statements made by individual Ministers that diminish the dignity of the Governor’s office may result in action, including “withdrawal of pleasure.”
- Constitutional support: While Raj Bhavan did not explicitly state that such Ministers would be dismissed, the text of Article 164(1) of the Constitution provided a clear indication of the consequences.
- According to Article 164(1), ministers serve at the Governor’s pleasure.
- Protest: This was made clear when the Governor wrote to the Kerala Chief Minister, requesting that he take action against the State Finance Minister, who, according to the Governor, had “ceased to enjoy” the Governor’s “pleasure.” The Chief Minister, on the other hand, refused.
- Other actions: The Governor’s other move, purportedly in the exercise of his statutory power as Chancellor, is to remove Vice-Chancellors of universities in the state, citing deficiencies in their appointment processes.
- However, he lacks such special powers and must act within the confines of the Constitution.
Governor’s office constitutional aspects
- Republican will: The appointed Governor’s function is always subject to the policies of the elected government, not vice versa. This is a fundamental theory of constitutional democracy in India.
- Provisional linking: The provisions of the Constitution cannot be read in isolation.
- For example, Article 164, which deals with the appointment of the Chief Minister and administering Ministerial oaths, is inextricably linked to Article 163.
- According to Article 163(1), the Council of Ministers must assist and advise the Governor, and Article 163(2) allows the Governor to act in his discretion in certain specified matters allowed by the Constitution.
- As a result, unless the Cabinet or the Chief Minister advises the expulsion of a Minister, the Governor cannot cause the expulsion of a specific Minister by “withdrawing pleasure.”
- Limited discretion: Additionally, Article 163(2) allows the Governor to exercise discretion in certain specified matters as permitted by the Constitution.
- This means that the Governor is generally bound by Cabinet decisions, unless he has a legitimate right to exercise his discretion.
- This is elucidated when deciding on sanction to prosecute a Cabinet Minister or when the Governor makes decisions as Administrator of a Union Territory in accordance with the President of India’s orders, etc.
- Supreme Court viewpoint: In Shamsher Singh vs. State of Punjab (1974), the Supreme Court cited the opinion of M.C. Setalvad, India’s first Attorney General, that the principle that the President (or Governor) is guided by the aid and advice of the Cabinet covered every function, whether it relates to addressing the House or returning a Bill for reconsideration, or assenting or withholding assent.
- In this case, for comparison, the Supreme Court extracted Dr. B.R. Ambedkar’s introductory statement from the Constituent Assembly, which stated:
- The President of the United States is not required to accept any advice given to him by any of his secretaries and has the authority to fire any Secretary at any time.
- The President of the Indian Union, on the other hand, will be generally bound by the advice of his Ministers and cannot do anything contrary to or without their advice. He also lacks the authority to dismiss Ministers as long as they have a majority in Parliament.
- Parallel comparison: The same principles apply to Governors, as the Union Minister also serves “at the pleasure of the President,” as stated in Article 75(2) of the Constitution.
- As a result, “withdrawal of pleasure” without advice from the Council of Ministers, as recently indicated by Kerala Raj Bhavan, is a misunderstanding.
- However, the Constitution’s romanticism was to be translated into a level of judicial realism and pragmatism, which the Supreme Court did in Shamsher Singh.
The evolution of the Governor as the titular head
- Outlining contrasts: To distinguish the constitutional meaning of Article 164(1) from its literal meaning, a historical reading of the provision is required, as explained below:
- Rough framework: Article 126 of the draught Constitution prepared by the Constitutional Adviser in 1947 stated that “Governor’s Ministers shall be chosen and summoned by (the Governor) and shall hold office during his pleasure.”
- The unfolding progression: This Article, which was included in the draught of the previous Article 144, was extensively debated in the Constituent Assembly.
- The Governor’s general discretion was removed, and the Cabinet was given the authority to rule.
- B.R. Ambedkar’s amendment to draught Article 144 resulted in the current constitutional scheme of Articles 163 and 164.
- Legal references: In Constitutional Law of India, scholar Subhash C. Kashyap explained that the words ‘during pleasure’ were always understood to mean that the ‘pleasure’ should not continue when the Ministry had lost the confidence of the majority.
- If the Ministry lost the confidence of the majority, the Governor would dismiss it with ‘pleasure.’
- As a result, the Article implies that the Governor is only a ceremonial head of state, and that if the Cabinet has a majority, the Governor cannot act against the Cabinet.
Taking care of a problem
- Imperialist mindset: The Governor’s office is colonial in nature. The post of Governor was placed under the supervision of the Governor General by the Government of India Act of 1858.
- The Government of India Act, 1935, which was later promulgated, went into effect on April 1, 1937. Even under this act, Governors were required to follow the advice of the provincial government.
- Constituent Assembly Debates: The Constitution makers were concerned about the potential dangers posed by the continuation of this colonial institution.
- During the deliberations, H.V. Kamath asked if there was any safeguard against the Governor abusing his power.
- Another prominent member of the assembly, P.S. Deshmukh, immediately responded that the guarantee is the Governor’s wisdom and the wisdom of the authority that will appoint the Governor.
Conclusion
Governors should act impartially while carrying out their constitutional duties, and the parliament should consider the recommendations of various commissions to further reform the governorship for a better and healthier democracy.
