office-of-governor

CONTEXT

The post-poll decisions of governors have been invariably challenged before the courts and also there have been conflicts between governors and chief ministers of states like in West Bengal.

APPOINTMENT OF CHIEF MINISTER

Sarkaria Commission on Centre-State Relations 

The view of commission about appointee to the office of governor

  • The committee recommended that an appointee shall be an eminent person in some walk of life, someone outside the respective State so that he would not have any personal interest to protect.
  • The views of Jawaharlal Nehru as expressed in the constituent assembly were reiterated which said that it is better to have a detached figure as governor who has not been recently active in politics.

Guidelines about appointing the chief minister

  • The report of the commission suggested principles guiding a governor in selecting a chief minister.
  • The Sarkaria Commission’s principles concern situations when no political party emerges as a clear winner.
  • The commission has recommended that in such cases the governor should invite a political party leader to form the government in the following sequence.
    • First, the leader of the largest pre-poll alliance, then the single largest party with others in support, and finally, post-poll coalitions.
  • Over the years, governors have exercised their judgment and discretion, and not stuck to the sequence laid down by the Sarkaria Commission.

The Justice Madan Mohan Punchhi Commission on Centre-state relations (2010)

  • The commission in its report recommended amendments to the constitution.
  • According to the report, there are no uniformly accepted conventions in cases of narrow majorities and it can be remedied by adopting constitutional amendments laying down specific guidelines and approaches ought to be followed by the governor which would result in greater clarity and certainty.

Constitutional Principles

Article 155: according to it the governor is nominated by the President on the advice of the council of ministers.

Article 164(1): it empowers the governor to appoint a Chief Minister.

Article 157 & Article 158: it specified three eligibility requirements for being a governor:

  • He/she must be at least 35 years of age
  • Should not be a member of either house of the Parliament or House of the State Legislature
  • Should not hold any office of profit.

Law on Governor-State Relations 

  • Powers enjoyed by the governor: The governor enjoys certain powers granted under the Constitution though he/she is envisaged as apolitical head who must act on the advice of the council of ministers. The powers include:
    • Giving or withholding assent to a bill passed by the state legislature.
    • Determine the time needed for a party to prove its majority.
    • Which party must be called first to prove its majority after a hung verdict in an election.
  • Difference of opinion between governor and the state: there are no provisions laid down for the manner in which the governor and the state must engage publicly when there is a difference of opinion.

Views of constitutional experts

  • Constitutional expert Faizan Mustafa has argued that governors have become political appointees, the constituent assembly envisaged the governor to be apolitical but politicians become governors and then resign to fight elections.
  • Alok Prasanna said that the chief minister is answerable to the people but governor is answerable to no one except the Centre, there is no provision for impeaching the Governor who is appointed by the President on the advice of the Centre. However, the governor  has a five-year tenure but he can remain in office until the pleasure of the president
  • National commission to Review the working of Constitution in 2001 observed that, because the governor owes his appointment in the office to the union council of ministers, in matters where there is tussle between Centre and states there is an apprehension that the governor is likely to act in accordance with the instructions if received any from the union.

ARBITRARINESS IN APPOINTMENT & REMOVAL OF GOVERNORS

  • The conflict exists between governors and chief ministers because of arbitrariness in appointment and removal of governors with the Indian constitution leaving it to the pleasure of the president.
    • As per Article 156(1) The Governor shall hold the office during the pleasure of the President.
  • Black’s dictionary defines pleasure appointment as assignment of someone to employment that can be taken up at any time, with no requirement for notice or hearing.
  • There is a distinction between the doctrine of pleasure as it existed in a feudal set up and the doctrine of pleasure in a democracy governed by rule of law.
    • The unfettered power and discretion of the crown in the feudal set up of the 19th century was not an alien concept.
    • However no government or authority has a right to do what it places in a democracy governed by rule of law.

The governors need to discharge their constitutional duties without any fear or favour as the founding fathers of a nation would intend them to do so and there is a need for Centre and states to follow the spirit of cooperative federalism.

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