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Insights into Editorial: Maximum Governor: On Governor’s role

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Context:

In yet another tug-of-war between Kerala Governor and Chief Minister, the Governor has turned down a request to summon a special sitting of the Assembly to debate the new three central farm laws.

The state government’s Cabinet had written to the Governor and, after the denial, is mulling approaching him again with the same request.

The episode raises questions on the role of a Governor and the contours of the powers he or she has under the Constitution.

Constitutional Provisions related to Governor

  1. The appointment and powers of government can be derived from Part VI of the Indian constitution. Article 153 says that there shall be a Governor for each State. One person can be appointed as Governor for two or more States.
  2. The governor acts in ‘Dual Capacity’ as the Constitutional head of the state and as the representative.
  3. He is the part of federal system of Indian polity and acts as a bridge between union and state governments.
  4. Article 157 and Article 158 of the Constitution of India specify eligibility requirements for the post of governor.

Who can summon a session of the Assembly?

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…” says Article 174 of the Constitution.

The provision also puts on the Governor the responsibility of ensuring that the House is summoned at least once every six months.

Although it is the Governor’s prerogative to summon the House, according to Article 163, the Governor is required to act on the “aid and advice” of the Cabinet.

So, when the Governor summons the House under Article 174, this is not of his or her own will but on the aid and advice of the Cabinet.

Can the Governor refuse the aid and advice of the Cabinet?

There are a few instances where the Governor can summon the House despite the refusal of the Chief Minister who heads the Cabinet.

When the Chief Minister appears to have lost the majority and the legislative members of the House propose a no-confidence motion against the Chief Minister, then the Governor can decide on his or her own on summoning the House.

Discretionary powers can be challenged in court:

But the actions of the Governor, when using his discretionary powers can be challenged in court.

A number of rulings by the Supreme Court has settled the position that the Governor cannot refuse the request of a Cabinet that enjoys majority in the House unless it is patently unconstitutional.

The latest in the line of rulings is the landmark 2016 Constitution Bench ruling in which the Supreme Court looked into the constitutional crisis in Arunachal Pradesh after the Governor had imposed President’s Rule in the state.

In ordinary circumstances during the period when the Chief Minister and his council of ministers enjoy the confidence of the majority of the House, the power vested with the Governor under Article 174 to summon, prorogue and dissolve the house(s) must be exercised in consonance with the aid and advice of the chief minister and his council of ministers.

Encroachment upon the powers:

The misuse of the Governor’s office to undermine duly elected State governments is a particularly mischievous disruption of federalism.

Governor questioned the urgency of the special session, and thought the Assembly lacked “the jurisdiction to offer a solution” to the farmers’ protest, an issue which the Assembly wanted to discuss.

This is an encroachment upon the powers of the legislature and the elected government and an abuse of his authority as a nominal head under the Constitution.

Arguments against discretional role of central government:

The resolution pointed out that agriculture was a State subject and “as a matter that seriously affects the States, the Bills should have been discussed in a meeting of the inter-State council”.

The Bills were passed in haste without even referring them to the Standing Committee of the Parliament, which the Assembly termed “a serious matter.”

It has become habitual for the Centre to overlook regional concerns, and the making of the farm laws without consulting States was in line with this trend.

The Council of States (Rajya Sabha) has been systematically undermined by arbitrarily labelling bills as money bills. The use of central agencies to browbeat Opposition-ruled States is yet another strain on federalism. 

Conclusion:

Governor is the constitutional head and the chief executive of any state of the Indian Union.

Even the Sarkaria Commission of 1983, which reviewed the arrangements between the Centre and the states, had said that so long as the Council of Ministers enjoys the confidence of the Assembly, its advice in these matters, unless patently unconstitutional must be deemed as binding on the Governor.

The Sarkaria Commission (1988) recommended that Article 356 should be used in very rare cases when it becomes unavoidable to restore the breakdown of constitutional machinery in the State.

The Supreme Court in the Nabam Rebia judgment (2016) ruled that the exercise of Governor’s discretion Article 163 is limited and his choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution.

The Rajamannar Committee emphasised that the governor of the state should not consider himself as an agent of the centre but play his role as the constitutional head of the State.

It is only where such advice, if acted upon, would lead to an infringement of a constitutional provision, or where the Council of Ministers has ceased to enjoy the confidence of the Assembly, that the question arises whether the Governor may act in the exercise of his discretion.