Signs of a confrontation between Raj Bhavan and the elected government in a State are not infrequent in the country. The onus often appears to be on the Chief Ministers to avert a constitutional crisis, as evidenced by Pinarayi Vijayan trying to buy peace with a miffed Governor, Arif Mohammed Khan, rather than pursue a confrontational course, over several issues in recent times. One way of seeing these developments is to attribute them to the appointment of those who have been politically active in the recent past as Governors and the partisan role they play as agents of the Centre. However, the problems may have to do with the way they understand their own powers. Constrained by the ‘aid and advice’ clause in their routine functioning, some Governors seem to be using the discretionary space available to them to keep regimes on tenterhooks. A Constitution Bench of the Supreme Court laid down in 1974 that the 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” — “situations” also illustratively listed. Yet, there is the extraordinary situation of some Governors not acting upon requests to grant clemency or assent to Bills; and, in one instance in Tamil Nadu, a reluctance to reserve for the President’s consideration a Bill that expressly requires Presidential assent because of obvious conflict with a central law.
Much of the conflict arises due to the Constitution itself. It fixes no time-frame for the Governors to act, and contains, in Article 163, an unusual power to choose what is in their discretion and what is not, with the courts being barred from inquiring into whether any advice and, if so, what advice was given. The Sarkaria Commission on Centre-State relations recommended no change in this scheme, but it is time it is revisited. While as the ‘lynchpin’ of the constitutional apparatus, Governors indeed have a duty to defend the Constitution and encourage or caution the elected regime, the impression that Governors are not obliged to heed Cabinet advice persists in some areas. At a time when regional political forces are actively seeking to be heard by the Centre, it may be time that the provisions relating to the Governor’s role are amended. Identifying areas of discretion, fixing a time-frame for them to act, and making it explicit that they are obliged to go by Cabinet advice on dealing with Bills can be considered. Regarding Bills, it is clear that the Constituent Assembly passed the provision for Governors to return Bills for reconsideration only on the express assurance that they have no discretion at all. In addition, as suggested by the M.M. Punchhi Commission, ending the practice of burdening Governors with the office of Chancellor in universities should also be considered.