The Office Of Governor In Our Democracy

Governor remains the Executive Head of a State and reigns supreme under the elected principles of a collective State ‘cabinet responsibility’, which is the essence of our Democracy to reiterate the texture of Federalism. The concept of Governorship was adopted and retained with few modifications from the Government of India Act, 1935, and was branded as an Institutional safeguard for the unity and integrity of Union of India when more than 500 princely states and a number of British administered provinces were merged.

Over the last four decades the Visions of the framers of our Constitution who entrusted the powers of Governors even dented the Centre-State relationship. To address this issue any ruling party at the Centre ensured that they appoint one of their party members who is basically a politician having enjoyed the power in some capacity or other in State or Centre as Governor. The relationships often get strained when there is change in Government due to political factors. The scope of powers under Article 356 providing powers of the Governor in case of failure of Constitutional Machinery in States have often been missed in the past and needs a thorough review. This article attempt to review to define the scope of discretionary powers of the governor.

The cost incurred to the exchequer for the post of governor has become too huge that our society could hardly afford to continue the same British type privileges extended to the Governor.  Though it is heartening to learn that the President has reduced his salaries and privileges by 30% which could save several hundred crores due to COVID19, will the same yardstick applies to Governors?

Articles 153 to 167 under Chapter II of our Constitution deals with the post of Governor  in terms of Executive powers, Appointment, Tenure, Qualifications, Conditions for the post, Oath or Affirmation, Discharge of functions during contingencies,  Powers to grant pardons, Suspend, Remit or Commute sentences in certain cases, Extent of Executive power of State, Council of Ministers to aid and advise Governor, Other provisions as to Ministers, Conduct of business of the State Government, Duties of Chief Minister as respects the furnishing of information to Governor, etc. Article 175 & 176 also confers right to the Governor to address and send messages to the House or Houses or take up Special address. Article 361 under Part XIX gives protection against Courts for performance of constitutional duties, criminal /civil proceedings, arrest.

Our Democracy is Dynamic and maturing fast with new challenges and needs to enhance the values spelt out in the Basic Structure of our Constitution. These challenges posed to the office of Governor have become a regular feature in our democracy in matters related to formation of Government, Constitutional crisis during defections, disqualifications, granting pardons, etc.  Courts were flooded with petitions by and against Governors for enforcement of duties and the responsibilities to uphold the values of democracy is getting to highest proportions on every passage of any elections. The Voting Common man forming the  Electorate became a mere spectator to the number games, technicalities in law, political favouritism, powers of the majority at Centre, back-end transactions related to horse trading, etc. On all occasions the voting population is always kept at dark and is left with no option to wait and watch the drama enacted by politicians. Many times, the immunity provided to the Governor become a mockery of constitution due to unwritten laws where judiciary too could not address and even Judgements do not always hold as valid precedents to be cited for similar cases in future. Hence, it is high time to review these provisions to meaningful propositions as under:

    

Article

Provisions under  the Constitution

New Propositions to Law Commission

151

Governors of States.—

There shall be a Governor for each State:

 Governor in all Union Territories should be made par with all other counterparts appointed in States enabling absolute exercise of Constitutional powers without any parity

155

Appointment of Governor.—

The Governor of a State shall be appointed by the President by warrant under his hand and seal.

President should head a Committee comprising with representatives from all major political parties which must unilaterally peruse the credentials of the applicants selected by them and decided by majority votes in membership

156

Term of office of Governor.—

(1) The Governor shall hold office during the pleasure of the President.

(2)The Governor may, by writing under his hand addressed to the President, resign his office.

Subject to the foregoing provisions of this article, a

(3)Governor shall hold office for a term of five years from the date on which he enters upon his office:

Provided that a Governor shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.

1. Word “Pleasure” of the President should be substituted with “Wisdom” of the Appointing Committee formed under Art. 155.

2. Resignation should be addressed to this Committee and the resigning Governor must forgo any appointments in public office or hold any office of profit for the rest of his life.

3. Term of office should be reduced to three years which would help many other senior statesmen and intelligentsia to occupy the coveted post.

This proviso must be removed so that it would facilitate the Committee to identify the successor in advance with utmost transparency. It would also facilitate the party in power to use the office of governor for political gains against the aspirations of mandate entrusted by the Electorate.

157

Qualifications for appointment as Governor.—

No person shall be eligible for appointment as Governor unless he is a citizen of India and has completed the age of thirty-five years.

Since it’s a post mandated by Constitution the Minimum Age  and Maximum Age  should be as applicable to Judicial Services (for Judges).  No relaxation to upper age limit at any cost since it would facilitate aged politicians to occupy the chair.

158

Conditions of Governor’s office.—

(1) The Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First Schedule, and if a member of either House of Parliament or of a House of the Legislature of any such State be appointed Governor, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as Governor.

(2) The Governor shall not hold any other office of profit.

(3) The Governor shall be entitled without payment of rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and, until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule.

[(3A) Where the same person is appointed as Governor of two or more States, the emoluments and allowances payable to the Governor shall be allocated among the States in such proportion as the President may by order determine.]

(4) The emoluments and allowances of the Governor shall not be diminished during his term of office.

(1) Governor should neither be a member or an ex-member of Legislature or Parliament as his appointment could facilitate By-Elections to the constituency from where he was elected or attach political patronage to his party. In other words, he should not be a politician all his life.

(2) Governor should not have held any office of profit even before appointment. He can be a Civil Servant or an employee of State or Central Government or Private sector organisation but not a Public Office in the capacity of MLA/MP or any post in political party or any local body post elected through public vote.

(3)House Rents and Emoluments should be fixed in terms of any Central Government Services applicable to any Civil Servant.

(4) It is subject to all Rules prescribed for any Central Government including Leave, etc

No extra or special perks or privileges to be extended. Cost of Personal Security should be deducted from the salary of Governor

160

Discharge of the functions of the Governor in certain contingencies.—

The President may make such provision as he thinks fit for the discharge of the functions of the Governor of a State in any contingency not provided for in this Chapter.

This unilateral powers entrusted should be removed. Even during contingencies  Governor should take up the advice and consultation of the Committee comprising of representatives from all political parties, eminent jurists, former civil servants, Judges, etc before discharge of his constitutional duties and functions

161

Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases.—

The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.

Governor is not above law and is bound by all provisions of laws of the land. He must comply or adhere to the directions of any court. Power of Governor to exercise grant pardons, etc., and to suspend, remit or commute sentences in certain cases should be time-bound and not to the indefinite time discretion enjoyed by the Governor to facilitate delay and deny or Justice. All past pendency related to delay in the office of Governor to be reviewed

162

Extent of executive power of State.—

Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:

Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.

Law making powers should be not be absolute and he must not assent to any bill or law without any debate in the House of Legislature and must be in accordance with the Public Opinion in general. Governor must proactively assess or verify the public sentiments and write a mandatory note in this regard on his Note put up. He must be empowered to even reject any proposal made by the legislature unilaterally without any debate or resolutions in the Assembly.

163

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.

(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.

(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.

(1) Apart from Council of Ministers there must be sitting and former Chief Justices of Supreme Court Judges whose opinion should be drawn on record before taking any decisions in the exercise of Constitutional functions.

(2)Discretionary powers of the Governor should NOT be absolute. All his decisions must be approved by a Committee comprising of representatives of all political parties in the State.

(3) The Advice so tendered should be put up for scrutiny under any process of law to validate the same and to uphold the principles adopted under the Constitution.

164

Other provisions as to Ministers.—(1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor:

Provided that in the States of 1[Chhattisgarh, Jharkhand], Madhya Pradesh and [Odisha], there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work.

2[(1A) The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent. of the total number of members of the Legislative Assembly of that State:

Provided that the number of Ministers, including the Chief Minister in a State shall not be less than twelve:

Provided further that where the total number of Ministers including the Chief- Minister in the Council of Ministers in any State at the commencement of the Constitution (Ninety-first Amendment) Act, 2003 exceeds the said fifteen per cent. or the number specified in the first proviso, as the case may be, then the total number of Ministers in that State shall be brought in conformity with the provisions of this clause within six months from such date as the President may by public notification appoint.

(1B) A member of the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the  expiry of such period, till the date on which he is declared elected, whichever is earlier.]

(2)The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.

(3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.

(4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.

The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified in the Second Schedule.

The word “Pleasure” should be removed. Governor should be given mandated a fixed time period to appoint Chief Minister and his council of ministers. This would prevent horse trading, resort politics, defections, etc.

If he is not able to decide, he must recommend for imposition of President’s Rule or dissolution of Assembly. It would also impose fear on all those MLAs losing their membership in case of dissolution. (Situations like TN, Karnataka, Goa, Maharashtra, Manipur, Rajasthan, etc will never happen in future )

(1) No. of Ministries or Ministries should be uniform all over the country.  The same must be consistent with the respective Ministry or Departments with the Government of India for efficient governance without duplication.

(2) In case of disqualification, Governor must notify the vacancy on the same day and recommend to Election Commission for conduct of Bye-elections without waiting for Courts to decide in case of litigation. Governor must be empowered as a supreme authority to erase the blot in the system which is against the public interest at large.  Electorate is kept waiting even for their basics till the verdict comes forth which is against the principles of democracy.

(3) No Minister should be appointed by the Governor who is not elected by electorate. There should not be any short cut route to occupy chair without getting votes under the due process of elections as it an office which should have mustered votes from the electorate comprising citizens from all walks of life.

(4) This clause should be deleted as NO unelected member should become CM/PM or any Minister.

(5) At the time of any constitutional crisis erupted on account of Defection, Resignation or formation of governments, Governor must be entrused with Supreme powers to keep all the legislators under his personal supervision and control or instruct them to report to their respective constituencies or call for live Meeting telecast in National Media to decide the support or opposition.

165

Conduct of business of the Government of a State.

(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.

Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.

The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.

(1) Governor should not be a mouthpiece of the elected government of both State and Centre. He must express in his own words instead of reading out a prepared text.

(2) Validity should be fixed as applicable to any orders as there cannot be instruments or orders running for indefinite period.  It would facilitate immediate execution.

(3) The word “Convenient” should be removed and replaced by “Need & Priority”.  He can exercise absolute powers to call for Meeting of Assembly depending upon the situation and emergencies.

166

Duties of Chief Minister as respects the furnishing of information to Governor, etc.—It shall be the duty of the Chief Minister of each State—

(a) to communicate to the Governor of the State all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation;

(b) to furnish such information relating to the administration of the affairs of the State and proposals for legislation as the Governor may call for; and if the Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.

All Decisions and Policies of the Government should be validated through any constitutional tool available with the Governor so that it is contrary to the public opinion or sentiments at large.  Governor at the recommendations of the legislature passed by a resolution can appoint a High Power Committee to peruse and review all such Administrative policies of the Government.

176

Right of Governor to address and send messages to the House or Houses.—

(1) The Governor may address the Legislative Assembly or, in the case of a State having a Legislative Council, either House of the Legislature of the State, or both Houses assembled together, or may for that purpose require the attendance of members.

(2) The Governor may send messages to the House or Houses of the Legislature of the State, whether with respect to a Bill then pending in the Legislature or otherwise, and a House to which any message is so sent shall with all convenient dispatch consider any matter required by the message to be taken into consideration.

Governor should regularly address to the Legislative Assembly critically evaluating the policies or conduct of members of house without reading a texted statements submitted by the ruling government.

He should proactively voice the overall needs and sentiments of the State in terms of policies, needs and emergencies harming the welfare and development.

Part XIX

361

 Protection of President and Governors and Rajpramukhs.—

(1) The President, or the Governor or Rajpramukh of a State, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties:

Provided that the conduct of the President may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under article 61:

Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State.

(2) No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any court during his term of office.

(3) No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office.

(4) No civil proceedings in which relief is claimed against the President, or the Governor of a State, shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President, or as Governor of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor  as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefor, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims.

This immunity should not be absolute. Courts can take suo moto notice on reports of moral turpitude or criminal/civil wrongs committed by the Governor in office.  He must also be subject to the due process of law as any other citizen without any exception.

A Resolution of the State Legislature based on complaints having FIR or prima facie evidence including non-cognizable offences against the Governor.  He must resign from office and can reinstated if all charges are exonerated.

The Governor is the sole Constitutional Head of the State.  He should not be functioning at the pleasure of President or those in the power at the Centre as he neither an employee of State nor Central Government. He is the custodian of all Executive and other powers defined in the Constitution.  It’s time to rise up and nullify all political controversies and set aside all partisan decisions and precedents set by his predecessors as a horrible story of the past and move on to a vibrant and robust Democracy.

It is high time that a Public and Political consensus is built around to develop and propose suitable amendments as put forth above to protect our democratic values and eliminate many “Princely” provisions in the Constitution.

 

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