The political endorsement that was recently given to the BJP by the Rajasthan Governor has reignited the debate on the independence and neutrality of the constitutional post. The Governor’s office has often courted controversy for the incumbent’s political views. However, there is a marked difference between seemingly routine deviations from strict constitutional norms and the present case, in which the alleged impropriety is neither subtle nor cloaked in specious constitutional justifications.
The Sarkaria Commission described the Governor as “a Constitutional sentinel and a vital link between the Union and the State.” In S.R. Bommai (1994), the Supreme Court said, “The office of the Governor... is intended to ensure protection and sustenance of the constitutional process of the working of the Constitution by the elected executive.” M.K. Gandhi said about the Governor’s office: “He would be an arbiter when there was a constitutional deadlock in the State and he would be able to play an impartial role.”
Given the vagueness surrounding the process of appointing and removing the Governor, doubts have been raised about the ‘legal nature’ of his office. According to B.R. Ambedkar, “He is the representative not of a party; he is the representative of the people as a whole of the State. It is in the name of the people that he carries on the administration.” In Hargovind Pant v. Raghukul Tilak (1979) , the Supreme Court affirmed that the “office of the Governor was not subordinate or subservient to the Government of India”.
In the contemporary constitutional landscape, the Governor is expected to advance the cause of ‘federalism’ and ‘democracy’, which form a part of the basic structure of the Constitution. In Government of NCT of Delhi v. Union of India (2018), then Chief Justice of India, Dipak Misra, clarified that democracy and federalism are firmly imbibed in India’s constitutional ethos, while reiterating that democracy requires the constant affirmation of constitutional morality.
Despite his unique constitutional positioning, the Governor is sometimes not seen as willing or able to discharge his functions as judiciously, impartially and efficiently as envisaged by the first Administrative Reforms Commission. A perusal of the reports of the Sarkaria, Punchhi and Venkatachaliah Commissions reveals that the independence and dignity of the gubernatorial office is invariably undermined by the appointment of persons not suited to the post, the lack of security of tenure, the lack of an appropriate removal mechanism, with no reasonable post-retirement benefits and limitations on post-retirement political ingratiation. Consequently, the promise of the institution remains as underwhelming as ever while the perils continue to multiply. It is high time that the recommendations of the relevant commissions are implemented in letter and spirit to obviate the danger of a full-blown constitutional crisis, to buttress constitutional morality and to restore the dignity of this office.
Shivam is a PhD candidate in law at the Faculty of Law, Delhi University. Anmolam is a lawyer, running a non-profit organisation BDLAAAW