Governor V/s Chief Minister – Powers and Functions Controversies – Indian Judiciary

Table of Contents

Schedule 7 has 3 Lists –

Centre
State
Concurrent

Historical Debate-

The Governors under the Government of India Act 1935 were appointed by the Central Government, For the Purpose of Central Government .
While the Constitution of India was being made, many members of constituent assembly was in favour of an elected governors as proposed by a sub-committee of B.G. Kher, K.N. Katju and P. Subbarayan.
But the apprehension of the clash between powers of Governor and Chief minister led to the system of appointed Governor in the state.

Council of Ministers to aid and advise Governor

(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.
163 (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.
This provision placed him on a higher pedestal than the President, as the latter has no option but to accept the decision of the Union cabinet.

Controversies-

Governor’s position is abused by the Centre.
Favouritism to Party at Centre- (agent of the Centre, Puppet and rubber stamps)
Sarkaria Commission- Governor should be appointed after proper consultations with the state Chief Minister and Vice President and Speaker of the Lok Sabha should be consulted by the PM before his selection.
Sarkaria Commission- He should be a detached figure without intense political links, or should not have taken part in politics in the recent past. Besides, he should not be a member of the ruling party.

Punchhi Commission -Recommendations regarding the appointment of Governors:

1.The Incumbent should have stayed away from active politics even at the local level for at least two years prior to his appointment.
2.The state Chief Minister should have a say in the governor’s appointment.
3.There should be a Committee entrusted with the appointment of Governors. This committee should comprise of the Prime Minister, the Home Minister, Speaker of the Lok Sabha, and the concerned state Chief Minister. Even the Vice President can be involved in the procedure.
Governor’s discretionary powers to invite the leader of the largest party/alliance, post-election, to form the government at many times misused to favour a particular political party.

Appointment of Chief Ministers

In case of appointment of state chief ministers, the Punchhi Commission recommended that:
There should be clear guidelines on the chief ministers’ appointment so that the discretionary powers of the governor are limited in this regard.
Order of precedence informing state government:
The group/alliance with the largest pre-poll alliance with the highest number.
The single largest party with support from others.
The post-poll alliance with a few parties joining the government.
The post-poll alliance with a few parties joining the government and remaining including independents giving outside support.

Imposition of President’s rule (Article 356)–
Provisions in case of failure of constitutional machinery in States.—
(1) If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation—
(a) assume to himself all or any of the functions of the Government of the State ;
(b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;
Dr. Ambedkar had said with respect to Article 356 that -“I hope the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces”.
“such articles will never be called into operation and that they would remain a dead letter”
But Ironically Article 356 has been employed over 100 times since its independence.
According to the Sarkaria Commission, this item has been utilized for political reasons in 90% of the cases.

Sarkaria Commission – This article should be used very sparingly and as a matter of last resort.
It can be invoked only in the event of political crisis, internal subversion, physical breakdown, and non-compliancewith the constitutional directives of the centre.
Before that, a warning should be issued to the errant state in specific terms and an alternate course of action must be explored before invoking it.
The material fact and grounds on the basis of which this article is invoked should be made an integral part of the Proclamation.
The Governor’s report must be a ‘speaking document’ and it should be given wide publicity.
Ultimately SR Bommai Judgement laid down certain guidelines for imposing Presidents Rule, which led to a reversal of trend in misuse of Article 356.

Case in point

2017 – Governor T.N. (Mr. Banwarilal Poruhit) held direct meetings with even district-level officials, making them present details on implementation of various government schemes.
Criticised by parties across the state
No clear Constitutional provisions that specifically empower the Governors to seek information directly from the officials.
The only provision is in Article 167, which says the Governor can seek any information from the council of ministers and the Chief Ministers.

Power to Summon the House

2020- Rajasthan Governor Returned the proposal by State Cabinet, seeking to convene a session of the Assembly
Article 174- Sessions of the State Legislature, prorogation and dissolution.—(1) The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.
the Governor can exercise the above onlyas per Article 163 of the Constitution which says that the Governor acts on the aid and advice of the Council of Ministers headed by the Chief Minister.

In 2016, the Supreme Court in Nabam Rebia and Bamang Felix vs Deputy Speaker case(the Arunachal Pradesh Assembly case)held
The power to summon the House is not solely vested in the Governorand should be exercised with aid and advice of Council of Ministers and not at his own.
Governor is not an elected authority and is a mere nominee of the President,such a nominee cannot have an overriding authority over the representatives of the people, who constitute the House or Houses of the State Legislature.
Allowing the Governor to overrule the State Legislature or the State executive would not harmoniously augur with the strong democratic principlesenshrined in the provisions of the Constitution. Specially so, because the Constitution is founded on the principle of ministerial responsibility.
The arbitrary removal of the Governorbefore the expiration of his tenure has also been an important issue in the recent pasta.
Sarkaria Commission – As far as possible, the governor should enjoy the term of five years.
He should be removed before his tenure only on the grounds as mentioned in the constitution or if aspersions are cast on his morality, dignity, constitutional propriety, etc.
In the process of removal, the state government may be informed and consulted.

Nehru’s view – who is a desired Governor

“I think it would be infinitely better if he was not so intimately connected with the local politics of the province…And would it not be better to have a more detached figure, obviously a figure that…must be acceptable to the government of the province and yet he must not be known to be a part of the party machine of that province…But on the whole it probably would be desirable to have people from outside – eminent people, sometimes people who have not taken too great a part in politics.”