Cooperation is key to fix rows involving governors

In November 1970, then President VV Giri chaired the annual conference of governors at Rashtrapati Bhavan. A day before the meeting, there was a discussion in the Lok Sabha about the conduct of the then Uttar Pradesh governor. Participating in the debate, Atal Bihari Vajpayee said, “The office of the governor has now become a subject of controversy and there is a demand that it be done away with. Our DMK [Dravida Munnetra Kazhagam] friends are demanding that the governor’s powers be pruned. Why did this situation arise? Because the Centre made governors pawns on the chess-board of politics. The result is that the very office of the governor has come into danger.” It was not the first time that Vajpayee, as an opposition leader, was critical of the office of the governor. A few years earlier, he had referred to governors as “mini-dictators”.

The governor’s office started coming into the public focus after the 1967 general elections. In these polls, political parties that opposed the Congress at the national level formed governments in several states. Gubernatorial conduct in these states led to accusations that governors were acting as agents of the Union government and transgressing their constitutional roles. In some cases, Opposition parties called them out for their partisan role in government formation and destabilisation. This controversy continues to date. Earlier this week, Tamil Nadu’s ruling coalition submitted a memorandum to the President seeking the removal of governor RN Ravi even as in neighbouring Kerala, the relationship between governor Arif Mohammed Khan and the Left government plumbed new lows.

Governors and state governments usually lock horns over the discretionary powers the former can exercise. The framers of our Constitution intended that governors should act on the aid and advice of their ministers. They established a Westminster-style parliamentary democracy where executive power was vested in a popularly elected government that was accountable to a legislature. They created a constitutional framework where the governors had limited discretion and role in the functioning of the government. In the constituent assembly, BR Ambedkar emphasised, “The governor under the Constitution has no functions which he can discharge by himself; no functions at all.”

The Constitution framers clarified that there were three broad areas where governors could exercise discretion. The first was where the Constitution explicitly gave them the power to do so; the second was in inviting an individual to form a government; and, the third was in determining whether there was an emergent situation in the state, which required the imposition of President’s Rule. The Constitution framers were also quite clear that the governor was not an agent of the central government. TT Krishnamachari, a member of the drafting committee of the Constitution, clarified that “such an idea finds no place in the scheme of the government we envisage for the future”. The Supreme Court of India has reiterated these positions over the years.

Ambedkar also explained that although the governor had no function, two duties were attached to the office. The first was to ensure that the ministry in power had a majority in the legislature. The second was to “advise the ministry, to warn the ministry, to suggest to the ministry an alternative and to ask for a reconsideration.” To perform this delicate task of a constitutional figurehead, Jawaharlal Nehru stated that it would be desirable to have eminent, non-political people who would cooperate fully with the government.

One of the first public controversies around the appointment of governors was in 1967 when President Zakir Hussain appointed Nityanand Kanungo (a former Congress minister from Odisha) as the governor of Bihar. The state’s council of ministers openly expressed unwillingness to accept him as the governor. Since then, successive commissions have recommended that the President nominate non-political individuals after consultations with the state’s chief minister. But from Independence till date, the governor’s office has been chiefly occupied by political personalities. MC Setalvad, Independent India’s first attorney-general, in his 1974 book on Union State relations, stated that the government treated the post as a “sinecure for mediocrities” or as a consolation prize for “burnt out politicians”.

One outcome of the 1970 governors’ conference was the creation of a committee to formulate norms and conventions associated with the office. This committee came up with an interesting idea. It suggested the creation of a special wing in the President’s secretariat that could establish and confidentially communicate to governors “certain norms of action based on accepted canons of interpretation of the Constitution”.

And while these recommendations would help, the working of the Constitution depends on cooperation and balance between the different constitutional authorities. Perhaps the best advice in recent times for governors came from President Pranab Mukherjee. In his concluding remarks at the governor’s conference in 2015, he stated, “The recent emergence of a single party government at the Centre and the Prime Minister’s avowed commitment to strengthening the federal democratic process should result in restoration of the Governor’s role in the public life of a State. I may, however, emphasise that more than any structured process, the authority that you exercise is based on a moral premise, and as long as the exercise of that authority is confined to the boundaries of the Constitution, I do not see the possibility of any diminution of the governor’s role.”

GOVERNORS AND STATE GOVERNMENTS USUALLY LOCK HORNS OVER THE DISCRETIONARY POWERS THE FORMER EXERCISES. THE FRAMERS OF OUR CONSTITUTION WANTED GOVERNORS TO ACT ON THE ADVICE OF MINISTERS AND EXERCISE DISCRETION ONLY IN SELECT MATTERS