OPINION: Governors are no symbols of Indian Federalism

The Constituent Assembly decided Governors would be ceremonial figures with no function to perform of their own volition, barring a few exceptions.

ByJohn Brittas

Published Nov 21, 2023 | 11:38 AMUpdatedNov 21, 2023 | 11:38 AM

Governor Government Supreme Court

The office of the Governor occupies a pivotal space in Indian democracy. A conscientious Governor upholds the dignity of his office, diligently serving the public interest and the greater good. He or she also refrains from pursuing narrow political agendas or self-aggrandisement. This means in the face of any such deviations by the Governor; it is imperative that remedial measures be expeditiously undertaken.

It is not the Constitution itself that is at fault. It is how individuals ascend to these pivotal positions that warrant our attention. The Union is towering over States with the institution of Governors, which was never intended in the Constitution.

Hypothetically, suppose the President also starts wielding the same kind of powers that some Governors in Opposition-ruling States are using. How will the Union Council of Ministers, headed by the rime minister, respond?

Raj Bhavans must cease to be perceived as extensions of party offices, and Governors must transcend partisan affiliations, firmly upholding the cherished ideals enshrined in our Constitution.

The role of Governors, entrusted with the solemn duty of upholding the tenets of democracy and federalism, now finds itself under the critical scrutiny of a discerning public. Recent events have shrouded these gubernatorial positions in a cloak of controversy, challenging the appropriateness of the nomenclature “Governor” for those who appear to have assumed roles akin to de facto rulers in several Opposition-ruling States, such as Kerala, Tamil Nadu, Telangana, West Bengal, Punjab, etc.

Also read: SC notice to Centre on Kerala plea

Governors as Governor-Generals of colonial vintage

The events at hand compel us to ponder whether it is time to consider an upgrade in nomenclature, one that aligns with the present-day assertive authority of these representatives of the Union government. To this end, “Governor-Generals” could more accurately encapsulate their deeds, reminiscent of the colonial era’s rule by British Governor-Generals.

Under the Government of India Acts, the Governor-General was a symphony for the British regime in India. Under the aegis of the Modi government, the modern-day Governors appear to have transitioned into an active battalion with a mandate to disrupt Opposition-led state governments.

Under the Government of India Act of 1935, the Governor General and provincial Governors, as representatives of the Crown, wielded near-absolute powers, with only limited authority vested in elected governments, and those too could be taken away at the whims and fancies of the colonial rulers.

Freedom from colonial rule inevitably brought about a change in the role of the Governor. Until the Constitution came into force, the provisions of the Government of India Act, 1935, as adopted by the India (Provisional Constitution) Order, 1947, were applicable.

Notably, this order omitted the expressions “in his discretion”, “acting in his discretion” and “exercising his individual judgement”, wherever they occurred in the Act, thereby making it incumbent on the Governor to exercise the functions only on the advice of his Council of Ministers.

Constituent Assembly debate on Governor’s role

Thereafter, the Constituent Assembly discussed at length the various provisions relating to the Governor, including issues related to the extent of discretionary powers. Finally, it decided that the Governors would be primarily ceremonial figures with no function to perform of their own volition, barring a few exceptions.

Article 163 of the Constitution mandates that the Governor must act upon the aid and advice of the Council of Ministers, except in so far as he is, by or under the Constitution, required to exercise his functions or any of them at his discretion.

Similarly, Article 200 stipulates that the Governor should declare his assent, withhold assent, reserve the Bill for the consideration of the President, or return the bill to the state Assembly “as soon as possible” after receiving it.

Ironically, these constitutional provisions have fallen prey to misinterpretation, leading to the rampant misuse of the Governor’s powers. As Article 200 clearly mandates, the Governor is expected to act promptly upon Bills presented for assent.

Also read: SC asks Tamil Nadu Governor about pending Bills

Sitting on pending Bills

The Governor’s power to withhold assent or reserve Bills for the President’s consideration has been misinterpreted. Proponents of these misinterpretations often cite the following three points vis-a-vis Article 200: The absence of a specific time limit for acting on Bills, the scope for reserving a Bill for the President’s consideration against the express advice of the Cabinet, and the belief that the Governor can kill any Bill by withholding assent.

In fact, the framers of the Constitution did not anticipate Governors sitting on Bills indefinitely without taking any action under Article 200. This is why they didn’t specify any timelines but instead chose the phrase “as soon as possible” — sitting on a Bill passed by the Assembly is not an option given by the Constitution.

In the petition filed by Telangana against the Governor’s inaction on Bills, the Supreme Court observed in its order dated 24 April that the expression “as soon as possible” has significant constitutional content and must be borne in mind by constitutional authorities.

Also read: SC calls for soul-searching by Governors over their inaction

South and gubernatorial lethargy

As the South stands out of the BJP stream, this misalignment between rhetoric and practice is particularly evident in states such as Kerala, Tamil Nadu, and Telangana, where the overzealous representatives of the Union government, who, among other things, exhibit a penchant for delaying the assent to legislations passed by the state Assemblies — in stark contrast to the swift approvals witnessed in BJP-ruled states like Madhya Pradesh and Gujarat.

Kerala, in particular, has been trapped in a web of governance lethargy as an astounding eight Bills passed by the state Assembly gather dust at the Raj Bhavan, with three pending for nearly two years. Tamil Nadu faces a similar quagmire, with 12e legislative pieces awaiting the Governor’s endorsement.

In response to this growing frustration, several Opposition-ruling states, including Kerala, Tamil Nadu, and Punjab, have now approached the Supreme Court seeking directives compelling Governors to expedite the approval of bills passed by legislatures.

Telangana, ahead of the curve, has already invoked the Supreme Court’s jurisdiction, and the court has emphatically underscored the significance of federal principles and established timelines a few weeks back.

Later, while hearing the plea filed by Punjab, the Supreme Court again expressed concern over Governors sitting on Bills passed by their respective state Assemblies. The court observed that the Governors cannot be oblivious that they are not elected representatives of the people.

Also read: Several states move SC over Governors sitting on Bills

Supreme Court takes stock

A Bench, headed by Chief Justice of India Dhananjaya Y Chandrachud, said: “Why do parties have to come to the Supreme Court? Governors must act before they approach the Supreme Court. This happened in another state also (referring to Telangana). Once the state approaches the Supreme Court, Governors start acting.”

While the Supreme Court, in its landmark judgement in SR Bommai and Ors. vs Union of India and Ors., prevented the arbitrary dismissal of state governments, innovative tactics are now being devised to perpetuate the misuse of Governors’ roles. Various commissions appointed to recommend measures to rectify the shortcomings in the functioning of the Constitution have unequivocally called for curtailing the so-called unbridled discretion of Governors.

The Sarkaria Commission, the MM Punchhi Commission, and the Justice Venkatachaliah Commission have all highlighted the excessive interference of Governors in Bills passed by state Assemblies and suggested specific periods for disposal of Bills by Governors. The Sarkaria Commission emphasised that, “In dealing with a state Bill presented to him under Article 200, the Governor should not act contrary to the advice of his Council of Ministers merely because, personally, he does not like the policy embodied in the Bill.”

The National Commission to Review the Working of the Constitution, headed by Justice MN Venkatachaliah, appointed by the Vajpayee government, also echoed this sentiment.

Also read: Governors are bound to act on Bills passed by state Assemblies 

Rules must be defined and practical 

Furthermore, all these Commissions recommended the establishment of a time frame within which a Bill should be assented to, returned, or referred for the consideration of the President. While the Sarkaria Commission suggested a one-month time frame, the Punchhi and Venkatachaliah Commissions recommended a maximum period of six months for gubernatorial decision-making.

Likewise, regarding the recent penchant of Governors vis-a-vis the position of Chancellors, the Punchhi Commission also categorically opined that the Governors should not be burdened with positions and powers like that of Chancellors, which the Constitution does not envisage.

It is important to remember that state public universities are established through laws passed by state legislatures. University incorporation, regulation, and dissolution is a State Subject as per Entry 32 of List II of the Seventh Schedule. So, for all practical purposes, the elected state government, which is accountable to the people, should have the authority to appoint the Chancellor of state universities.

The concerns voiced by CN Annadurai about the trampling of federalism seem even more prescient now.

He had noted in 1969: “We have a federal structure. That is why the framers of the Constitution wanted a federal structure and not a unitary structure, because many political philosophers have pointed out that India is so vast — in fact, it has been described as a sub-continent — the mental health is so varied, the traditions so different, the history so varied that there cannot be a steel framed unitary structure here.”

It is high time, therefore, that we set in motion a mechanism to review the role of the Governor, which increasingly appears like a vestigial organ of the British colonial era, not a symbol of Indian federalism.