The Governor of Gujarat has appointed a retired High Court Judge as the Lokayukt of the State without consulting the Chief Minister and after consulting the Leader of the Opposition. The Gujarat Government has strongly objected to this act of the Governor, stating that the she had acted contrary to the provisions of Article 163 of the Constitution, which states, “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 function, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion”.

The action of the Gujarat Governor is not the solitary example of a Governor acting either contrary to the advice of Council of Ministers or without bothering to take the advice of the Council. For example, the decision of the Governor of Karnataka not to summon a session of the Legislature when advised by the Chief Minister to do so falls within the category of the Governor’s action being contrary to the provisions of the Constitution. Many Governors have resorted to what was done by Giani Zail Singh as President in the case of the Postal Bill, in which he neither gave assent nor returned the Bill for reconsideration. In fact he sat on the Bill till the House was dissolved, thus causing the Bill to lapse. Bhai Mahavir, as Governor of Madhya Pradesh, did the same thing with a Bill which aimed at amending the Universities Act, reducing the powers of the Chancellor in the matter of administration of the universities and appointment of their Vice Chancellors. Under Article 111 of the Constitution in the case of the Union and Article 200 in the case of the States if the President or the Governor decides not to give assent to a Bill there is no time limit prescribed within which the President or Governor must make up his mind in this behalf. In the United States under Article 1, section 7, clause 2, President has exactly ten days from the date of presentation of a Bill to either give his assent or return it to Congress for reconsideration. If Congress thereafter approves the Bill once again, then it becomes law. Our lawmakers must seriously consider whether the Constitution should be amended to provide for a time limit for the President or Governor to consider a Bill, because in a parliamentary democracy it is the prerogative of the Legislature to enact laws and whereas the Head of State may call for reconsideration of a Bill, he cannot sit in judgment indefinitely over the Legislature in exercising its legislative function.

There is another area in which some of our governors have been fairly notorious and that is in destabilising a State Government and making recommendations under Article 356 for the dismissal of a State Government. In this the Governors definitely act as agents of the Central Government in pushing the political agenda of the ruling party at the Centre to remove from power in a State a party belonging to a different ideology. But are Governors agents of the Central Government under the Constitution? The scheme of the Constitution as laid down by Article 1 is that India is a Union of States. This vests in every State a degree of sovereignty which is merged in the larger sovereignty of the nation without thereby becoming extinct. This provision of the Constitution is reinforced by the Seventh Schedule framed under Article 246. This Schedule recognises that there is exclusive jurisdiction and competence of Parliament with regard to List 1 of the Schedule, just as there is exclusive jurisdiction and competence of the State Legislature with regard to List 2. There is also a concurrent jurisdiction of Parliament and the State Legislatures with regard to List 3. Part VI of the Constitution, which relates to the States, creates the post of a Governor for each State, vests the executive power in him and also makes him an integral part of the State Legislature which, under Article 163, consists of the Governor and the House where there is an unicameral legislature and both the Houses where there is a bicameral legislature. No doubt the Governor is appointed by the President under Article 155 and holds office at the pleasure of the President under Article 156, but because he is the head of the State vested with the executive powers of the State and is also a part of the Legislature, he is more than an agent of the Central Government and has all the characteristics of a sovereign Head of State. This point is very important because in his functioning the Governor cannot be partisan, he cannot have a political bias and he certainly cannot work at the behest of the Central Government. He is an independent head of a State which has many of the trappings of sovereignty and that is how he must behave.

It is not the job of the Governor to intrigue against the government of a State, as was so openly done by H.R. Bharadwaj in Karnataka. The Chief Minister and Council of Ministers are collectively responsible to the Legislative Assembly, not to the Governor. In a way they are accountable to the Governor because under Article 167 the Chief Minister must keep the Governor apprised of the decisions of the Council of Ministers and generally about the administration of the State. The Governor can give advice to the Council of Minister and can otherwise try and guide the Chief Minister. What he cannot do is interfere with the administration in such a way that he functions contrary to the advice given to him by the Chief Minister.

This brings us back to the question of the Gujarat Governor appointing a Lokayukt without being so advised by the Chief Minister. Article 166 is very clear that in all matters except where the Constitution gives discretionary powers the Governor must act according to the advice of his Council of Ministers. He cannot indefinitely withhold his assent to a Bill, he cannot brush aside the advice of the Council and take an independent administrative decision, he cannot openly criticise his own government in public and he cannot substitute himself for any authority in the State. It is the legislators who are elected and it is the Council of Ministers which has the mandate of the people to rule. Like the Queen of England the Governor may reign but he may not rule. Trouble begins when a Governor confuses these two roles. The Governor must remember that the Chief Minister and the Council of Ministers, provided the House agrees, can bring forward unpopular legislation, can even govern unwisely. He may caution government about this but he cannot order government. A good Governor would always be able to informally talk the Chief Minister out of an unwise decision, but if a Chief Minister insists on being foolish it is the electorate or the House which would call him to account, not the Governor.

Let me give a few examples. There has always been a long-standing dispute between the Governor as Chancellor of the Universities and the Chief Minister in Madhya Pradesh, especially if the two belong to different parties, over the appointment of Vice Chancellors. The selection procedure for the Vice Chancellors is laid down in the Madhya Pradesh Universities Act. The practice in the past was that the panel prepared by the search committee was shown by the Governor/Chancellor to the Chief Minister and a final name was selected after due consultation. Bhai Mahavir stopped doing so when Digvijay Singh was Chief Minister and this was further repeated by Balram Jakhar as Governor and a BJP Chief Minister in Madhya Pradesh. T.V. Rajeshwar and Mulayam Singh Yadav in Uttar Pradesh had similar lack of cordiality, resulting in conflict. Digvijay hit back by liberal use of section 52 of the Universities Act to remove Vice Chancellors and appoint caretaker Vice Chancellors. He also took the appointment of the Registrar of a University out from the purview of the Vice Chancellor and brought all Registrars under the Department of High Education. This caused constant conflict between the Vice Chancellor appointed by the Governor and the Registrar appointed by government and virtually wrecked the universities in Madhya Pradesh.

Another example is of Bihar when Govind Narain Singh was Governor and used the Raj Bhawan as a centre of politics. The Governor of Jharkhand, Shibte Hasan Rizvi, played a similar role. These are examples of an unhealthy relationship between a Governor and a Chief Minister, which must be eliminated from our system.

Are there situations in which the Governor can exercise discretionary powers? One such is in a matter of giving sanction for the prosecution of a minister. In the A.R. Antulay case the Supreme Court ruled that because the Governor is the appointing authority of the Chief Minister it is he alone who could sanction prosecution. In the Lokayukt of Madhya Pradesh vs. The State, the Supreme Court ruled that the High Court erred in setting aside the sanction issued by Bhai Mahavir, the Governor, for prosecution of three ministers of government despite the Council of Ministers having advised against it. The Supreme Court ruled that the Council collectively could hardly be expected to take an unbiased view in a case pertaining to their own colleagues and, therefore, the Governor, as appointing authority of ministers, could sanction their prosecution independent of the advice of the Council. In other words, here is an area where the Governor has discretionary powers. In the appointment of the Chief Minister the Governor has no Council which could advise him and, therefore, under Article 163 of the Constitution the Governor would appoint a Chief Minister at his discretion. However, because the Chief Minister is responsible to the Legislature, obviously only that person can be invited to be Chief Minister who enjoys the confidence of the House. It is the majority party in the Legislature which would advise the Governor in this behalf.

Under Article 159 the Governor swears to preserve, protect and defend the Constitution and the law. If the Council of Ministers renders him advice which is violative of the provisions of the Constitution he will naturally reject it. For example, if the Council advises him to ignore a court order the Governor will not accept this advice. If the Council advises him to wrongfully dismiss a person from service the Governor will not accept this advice. If the Council insists on working in such a way that the constitutional order in the State is disturbed the Governor, independent of the Council, will advise the President suitably under Article 356. In deciding to reserve a Bill for the consideration of the President under Article 200 the Governor will not seek the advice of the Council of Ministers. These are areas where the Governor does have discretionary powers. The Governors of some States such as Maharashtra, Gujarat, Nagaland, Manipur, Sikkim and Arunachal Pradesh have certain discretionary powers as provided in Part XXI of the Constitution. In all other matters the Governor has no discretionary powers. It is about time that the Central Government made this clear to all Governors instead of encouraging persons like the Governor of Gujarat to act in an unconstitutional manner.

For a person to be appointed as a driver in a government department or a cook in a government guesthouse there are certain requisite qualifications. Under Article 157 the only qualification required of a Governor is that he should be more than thirty-five years old. There is nothing in the Constitution which says that a lunatic may not be appointed as Governor. It is not mandatory for a Governor to be literate. Under Article 158 he should not be a Member of Parliament or State Legislature, nor should he hold an office of profit, but there is nothing to prevent a person employed in a commercial house being appointed as Governor. Is it not time for our lawmakers to consider providing some qualifications for a Governor? Should he not have experience in some field of endeavour which qualifies him to becoming a Head of State? Should he not be a person of proven integrity, who has demonstrated that he is nonpartisan? He occupies the gubernatorial position which is the highest such post in a State. He is not elected and, therefore, does not enjoy the confidence of the people. N.V. Gadgil, as Governor of the Punjab, said in a public meeting at Bhopal in 1957, presided over by H.V. Pataskar, the Governor of Madhya Pradesh, “The Indian Constitution is indeed beautiful. The people reject us but the Government accepts us. (Pointing to Pataskar). We are the two defeated heroes of the elections, appointed to protect the Constitution and to oversee the constitutionally elected government”. He is not selected through a process which demonstrates his ability. He is appointed at the whim of the ruling party at the Centre. This is a grave injustice to the post. No wonder most of our Governors are failed politicians, preferably of an age where an early State funeral is a distinct possibility and many of their actions come straight out of the script of black comedy. How can they possibly “preserve, protect and defend the Constitution”?

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Published Date: 12^th September, 2011