The role, powers, and discretion of the Governor’s Office in multiple States have been the subject of constitutional, political, and legal debate for decades. Recently, the prolonged silence of Jharkhand’s Governor over Chief Minister Hemant Soren’s possible disqualification as an MLA resulted in political uncertainty.
The power spat between the Delhi government and the Centre-appointed Lieutenant Governor over the appointment of bureaucrats or the deadlock between the Tamil Nadu government and Governor R.N. Ravi over assenting to the National Eligibility cum Entrance Test (NEET) exemption Bill are just two more instances of a tussle between the Raj Bhavan and the elected government in a State.
It thus becomes pertinent to understand what the framers of the Constitution had envisaged for the post of the Governor, and what powers have been specifically granted to the Office of Governors and Lieutenant Governor in the Constitution.
How did the post of Governor come about?
Since 1858, when India was administered by the British Crown, provincial Governors wereagents of the Crown, functioning under the supervision of the Governor-General.
Over the following decades, the Indian nationalist movement sought various reforms from British rule, aiming for better governanceThese efforts culminated in the Government of India Act, 1935, which came into force in 1937, bringing provincial autonomy. Post this, the Indian National Congress commanded a majority in six provinces.
With the 1935 law, the Governor was now to act in accordance with the advice of Ministers of a province’s legislature, but retained special responsibilities and discretionary power.
Upon Independence, when the Provisional Constitution of 1947 was adapted from the 1935 Act, the post of Governor was retained but the phrases ‘in his discretion, ‘acting in his discretion, and ‘exercising his individual judgement’, were omitted.
The post of the Governor was extensively debated in the Constituent Assembly, which too decided to retain it while re-orienting its role from the British era. Under the parliamentary and cabinet systems of governance adopted by India, the Governor was envisaged to be the Constitutional Head of a State.
What aspects of the post were debated in the Constituent Assembly?
Dr. B.R. Ambedkar, referring to the Governor’s position as “ornamental”, called his powers “limited” and “nominal”. He described the Governor’s role thus in the Assembly debate on May 31, 1949: “The Governor under the Constitution has no functions which he can discharge by himself; no functions at all. While he has no functions, he has certain duties to perform, and I think the House will do well to bear in mind this distinction...According to the principles of the new Constitution he is required to follow the advice of his Ministry in all matters.”
The two most important aspects of the Assembly debate became whether the Governor should be elected or nominated and whether he/she should be given certain discretionary powers.
While it is now enshrined in Articles 154 and 155 of the Constitution that the Governor is to be nominated by the President as the executive head of the State, members had questioned whether a nominated Governor could be impartial.
Biswanath Das, a member from Orissa and future Governor of Uttar Pradesh, expressed his apprehension by saying that the Governor had been “nothing but a cipher” in provinces when Congressmen came to power in Independent India. He asked how then, a Governor nominated by the President and the Central Government would co-operate with the elected State Government.
In his defence of a “nominated Governor”, Jawaharlal Nehru reasoned that an elected Governor would fuel separatist provincial tendencies. He proposed that the Governor, nominated as such, could be a “detached figure” who could rise above party politics. Dr. Ambedkar concurred by asking why, if the Governor’s post was a “purely ornamental” one, should money and effort be spent on an election.
Article 143 of the draft Constitution (now Article 163) states that the Council of Ministers of a State with the Chief Minister as the head should “aid and advise” the Governor in carrying out his functions, “except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion”.
Multiple members of the Assembly raised concern about the “discretion” clause. Member Rohini Kumar Chaudhury said that Dr. Ambedkar had convinced the members of the Assembly to accept a nominated Governor by assuring them that his position would be “merely a symbol”. She argued how “any person who has the right to act in his discretion can be said to be a mere symbol”. She asked if we were living in the past we wanted to forget, by giving the Governor the same power as that given to British Governors.
Dr. Ambedkar contended, in response to the arguments, that vesting the Governor with certain discretionary powers was “in no sense contrary to or in no sense a negation of responsible government”. He said that the phrase “except in so far as he is by or under this Constitution” in Article 143 meant that the discretion was a “very limited” clause.
Members also raised doubts about Article 147 (now 167), which empowers the Governor to ask the Chief Minister to furnish any information regarding the “administration of the affairs of the State and proposals for legislation”. It also empowers the Governor to ask the Chief Minister to submit for consideration to the Council of Ministers, a decision that was taken without the Council's consideration.
Some argued that this Article would enable the Governor to interfere with and obstruct the administration carried out by the State Government, but Dr. Ambedkar said this notion was “completely mistaken” as the Article nowhere said that the Governor could overrule the Ministry. He added that if the Governor’s limited duties of advising and warning Ministers was also taken away, then he would be rendered a “completely unnecessary functionary”.
However, in the recent past, multiple State Governments have routinely expressed discontent over Governors interfering with day-to-day administration— for instance, the prolonged discord between current Vice-President and former West Bengal Governor Jagdeep Dhankhar and Mamata Banerjee’s ruling TMC. The Chief Minister said that Mr. Dhankhar was targeting her and State government officials and making them follow his instructions as if they were his “bonded labourers”. The State government had written to the Centre multiple times to recall the Governor.
There was similar conflict when Kiran Bedi was serving as the Governor of Puducherry.
What other constitutional provisions talk about the Governor’s role?
The other important provisions defining the Governor’s role state that the Governor appoints the Chief Minister after an election and the Council of Ministers on the advice of the CM (Article 164).
The Governor can also summon, prorogue, and dissolve the Legislative Assembly (Article 174). By convention, he does this on the advice of the Council of Ministers while they enjoy the confidence of the Assembly. The M.M Punchhi Commission’s report on Centre-State relations points out that the exercise of his discretion happens only when following the Council’s advice would be unconstitutional or if the Council has lost the confidence of the Assembly.
Also read: Governing the Governors
Every Bill passed in an Assembly has to be sent to the Governor (Article 200), after which he has four options — to assent to the Bill, withhold assent, reserve the Bill for the consideration of the President, or return the Bill to the legislature, asking it to reconsider the Bill or an aspect of it. The Governor can also suggest an amendment to the Bill. The legislature is supposed to quickly consider the recommendations but if it chooses to pass the Bill in the same form again, “the Governor shall not withhold assent therefrom”.
As for the role of the Lieutenant Governor, Article 239, introduced through an amendment in 1956, states that each Union Territory will be administered by the President through an administrator appointed by him and given a designation he specifies. The administrators in some UTs are designated as Lieutenant Governors, with a special provision (Article 239AA) for the National Capital Territory of Delhi, which was inserted in 1991.
The Lt. Governor of Delhi also acts on theadvice of the Council of Ministers except on the subjects of police, public order, and land. The Lt. Governor can exercise his discretion when required by any law. In case of a difference of opinion with the Ministers, he would have to consult the President.
How has the Supreme Court interpreted the role of the Governor?
The role of the Governor was first questioned after the 1952 elections in undivided Madras, when, ignoring the United Democratic Front’s (UDF) claim as the party with the majority, Governor Sri Prakasa invited the Congress to form the government, which it did after engineering several splits and defections, with Rajaji as Chief Minister.
The Governor’s position was subject to much debate after the fourth general elections of 1967 when the Congress lost power in eight States while retaining it at the Centre. In the subsequent decades, the formation of regional parties and tenuous alliances to form governments led to politically volatile situations in many States. In many such cases, Governors started being called upon to exercise their discretion, thus inviting allegations of partisanship.
In 1975, after the declaration of national Emergency, the DMK regime offered political support to dissidents, which led to realignments in State politics. Then Tamil Nadu Governor K. K. Shah sent a report to the President to dismiss the DMK government for pervasive corruption. President’s Rule was imposed on February 3, 1976. The calling for President’s Rule by Governors became a regular practice and it was imposed in States over a 100 times prior to 1994.
It was with this backdrop that the Supreme Court’s nine-judge Bench gave its historic verdict in the S.R. Bommai case in 1994, ruling that imposition of President’s Rule shall be only in the event of a breakdown of constitutional machinery.
S.R. Bommai was the Chief Minister of the Janata Dal government in Karnataka in April 1989, when his government was dismissed. The dismissal was on the grounds that the Bommai government had lost majority following large-scale defections. Then Governor P. Venkatasubbaiah refused to give Bommai an opportunity to test his majority in the Assembly. The Supreme Court ruled that the floor of the Assembly should be the only forum that should test the majority of the government of the day, and not the subjective opinion of the Governor, who faced allegations of being the Centre’s “agent”, concerns as old as the Constituent Assembly.
Post that, governments have knocked on the doors of the apex court multiple times to interpret the extent of the Governor’s discretionary powers, whether it is about summoning or dissolving the Assembly, appointing the Chief Minister in a hung Assembly, or withholding assent to Bills.
In late 2015, a political crisis arose in Arunachal Pradesh, where multiple Congress MLAs rebelled against Chief Minister Nabam Tuki. The members of the BJP then sent a letter to Governor J.P. Rajkhowa expressing displeasure towards Nabam Rebia, the Speaker of the Assembly.The Governor, acting without the advice of the Chief Minister, advanced the Assembly session and listed removal of the Speaker as the agenda.
The Speaker moved the Supreme Court against the Governor’s move, and a five-judge Constitution Bench held in 2016 that Mr. Rajkhowa’s decision was a violation of the Constitution, leading to the restoration of the Congress-led Nabam Tuki government.
“The Governor can summon, prorogue and dissolve the House only on the aid and advice of the Council of Ministers with the Chief Minister as the head. And not at his own will,” the Bench led by the then Chief Justice J.S. Khehar held in a unanimous judgment.
The Supreme Court highlighted that “the area for the exercise of his (Governor’s) discretion is limited”.
“Even in this limited area, 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 Bench held.
In another judgement, Shamsher Singh vs State of Punjab (1974), the Supreme Court said that President and Governor shall “exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations”.
Multiple commissions appointed by the Central government to review and reform Centre-State relations and encourage co-operative federalism have spoken about the role of the Governor as well, with their reports relying extensively on Supreme Court judgements. The Sarkaria Commission, headed by Justice R. S. Sarkaria, said in its 1988 report that it would not be desirable to appoint a Governor who is a member of the ruling party at the Centre, in a State where an Opposition party is governing. It said that the Governor appointee should be a detached outsider and a person of eminence in some walks of life.
Later, in 2007, the M.M Punchhi Commission report stated that Governors were expected to be independent, and to act in a manner devoid of any political consideration. It pointed out that independence of such actions would include keeping the State Legislature and the political executive shielded from the political will of the Union Government.