Appointed rather than elected
Governors The Draft Constitution originally planned to have elected Governors. But in the Constituent Assembly, it was decided to have appointment of Governors by the President, upon the following arguments:
(i) It would save the country from the consequences of still another election, run on personal issues.
(ii) The Governor elected by direct vote might consider himself to be superior to the Chief Minister; this might lead to frequent friction between the Governor and the Chief Minister.
(iii) The expenses involved and the elaborate machinery of election would be out of proportion to the powers vested in the Governor who was to be a mere constitutional head.
(iv) Through the procedure of appointment by the President, the Union Government would be able to maintain intact its control over the States. The method of election may encourage regional tendencies. The Governor would be the nominee of the Government of that particular province.
The position, as it stands now, shows that a Governor serves less as the constitutional head of a State Government and more as an effective agent of the Union Government to keep a very strong control of the Centre over the leaders of the subordinate government.
Though the President appoints the Governor, it is done on the advice of the Council of Ministers, which in reality means that the ruling party at the Centre has a clear say in the matter of choosing the candidate.
If the party ruling in the State is different from that ruling at the Centre friction arises between Chief Minister and Governor, especially if the State Govt. does not approve of the choice.
When the Governor uses his discretionary power to appoint or dismiss a ministry, or dissolve the Assembly, controversy rises.
As the discretionary powers of governors are undefined it leads to apparently biased actions and thus controversy.
Areas of controversy
(i) Mode of appointment makes Governor an ‘agent’ of the Centre.
(ii) The State Government’s wishes are generally ignored in appointment or removal of the Governor, especially if ruling parties differ at Central and State levels.
(iii) The discretionary powers of the Governor being ill-defined, his actions in defiance of the State Government arouses controversy.
(iv) Patently partisan manner in appointing the Council of Ministers, dissolving the Assembly or reporting for the imposition of President’s rule result in controversy.
(v) There is some objection to the general pomp and show accompanying the post.
What can be done to improve the situation?
To improve the situation, healthy traditions must be created with the Union Government playing a more responsible role than State Governments.
The office of the Governor should not be studied as a sinecure job that may be bestowed on any favoured candidate of the Union Government in an unscrupulous manner.
The patronage of the Union executive must be exercised for a person who is capable of dealing with complicated affairs of public life. He must be a person capable of holding the balance between national and regional interests.
The office should not be treated as the last refuge of a retired politician or a civil servant. Outstanding men in political, social or educational life of the country, who are not controversial figures, must obviously be the proper choice.
In view of the declining administrative standards, perhaps it is necessary to enlarge the role of the Governors to give them several watchdog functions in specific areas with the voluntary concurrence of the Chief Ministers.
The Governor is under an oath to defend and protect the Constitution. Instead of creating conditions of friction with the leaders and the people of his State by means of rash actions he must exercise patience and forbearance and behave in such a way that his impartiality remains undoubted.
All these suggestions require the political will to act according to principles and put national interests before mere party and short-term interests.
Constitutional position regarding the dismissal of a ministry by the Governor
True, the Council of Ministers in a State holds office during the “pleasure” of the Governor but “pleasure” in the constitutional sense can never be arbitrary. At any rate this provision has to be read along with the further provision that the Ministers are collectively responsible to state Assembly.
This implies, in the first place, that the Governor cannot foist on the Assembly a Council of Ministers that does not enjoy the confidence of the House; in the second, that he cannot arbitrarily dismiss a Ministry that has the confidence of the House.
He certainly has a role to play when no clear majority has emerged after an election. It is then for him to assess which party or combination is likely to have the confidence of the House.
The Sarkaria Commission has described in detail how the Governor should go about this task of selecting the Chief Minister. And the Commission’s recommendations have now received judicial endorsement.
After the majority judgement in the President’s Rule cases, the Governor has no power whatsoever to dismiss a Ministry on the ground that it has lost the support of the Assembly, unless the lack of support has been proved on the floor of the Assembly. If the Chief Minister still refuses to resign, the Governor can act.
If the law and order problem be of such a magnitude as to amount to the breakdown of the constitutional machinery in the State, then all that the Governor can do is to report that matter to the President and it would be for the latter, the Union Cabinet really, to decide what to do or not to do.
Special responsibilities of the Governor of a State
There are certain special responsibilities of the Governor assigned to him by the President:
(1) As an administrator of an adjoining Union Territory, the Governor exercises powers without consulting the Ministers.
(2) The Governor of Nagaland has special responsibility in connection with law and order in the context of tribal unrest.
(3) The Governor of Manipur will see to the proper functioning of the Hill Areas Committee of the Legislature of the State.
(4) Governor of Sikkim has special responsibility in connection with the peace and progress of the people of Sikkim.
For all the above responsibilities assigned to him the Governor carries out his functions independently on his discretion.
Legislative powers of the Governor of a State
The Governor is a part of the State Legislature, though he is precluded from being a member of any House. He has the power of nominating members ofthe Legislative Council, where there is one.
He nominates suitable members of the AngloIndian community in the Assembly if, in his opinion, the said community has not been adequately represented.
The Governor has the power to summon orprorogue the Houses or either House.
He may send messages to either House, jointlyor separately. He can dissolve the State Assembly. He will address the Legislature at the commencement of every session. No Bill can become law without the Governor’s assent. He can
(a) give his assent, or
(b) withhold the bill, or
(c) reserve the same for considerat ion of the President. He m ay send back any Bill other than aMoney Bill to the Legislature for reconsiderations. Art 213 details the power of the Governor topromulgate ordinances during recess of Legislature.
Discretionary powers of the Governor
The question whether a Governor may usehis discretion and act in disregard of the advice of his ministers has been considered and answered categorically by Dr. Ambedkar himself.
When the method of choosing the Governorwas under discussion in the Constituent Assembly, he felt that the Governor would not exercise any function in his discretion and that, according to the principles of the Constitution, he would be required to follow the advice of his ministry in all matters.
As a result, in the Constitution as adopted finally, full ministerial responsibility without any discretionary powers for the Governors was established over the whole field of state administration.
A careful reading of the various constitutionalprovisions will, however, show that the Governor is neither a figure-head nor a rubber stamp.
The occasions which may afford an opportunity to the Governor to act in his discretion might be:
(a) the selection of a Chief Minister.
(b) dismissal of a ministry.
(c) dissolution of a State Assembly.
(d) advising the President for the proclamation of an emergency, etc.
But the Governor’s discretionary powers cannot, in reality, be absolute.
The President can always check a Governorand he may even dismiss him, if he misuses his powers.
“A Governor can do a great deal of good, if heis a good Governor and he can do a great deal of mischief, if he is a bad Governor, in spite of the very little power given to him under the Constitution”.
Privileges and immunities
The Governor enjoys a number of privileges and immunities.
In the exercise of his official duties, he is notaccountable to any court of law.
No civil or criminal proceedings shall lieagainst a Governor in any court of law, as long as he remains in office. Likewise, no summons can be issued for his arrest or imprisonment.
While the Constitution does not empower thePresident to exercise any function ‘in his discretion’, it authorises the Governor to exercise some functions ‘in his discretion’. To this extent, the principle of Cabinet responsibility in the States varies from that in the Union.
Status and functions of Advocate General
Each state shall have an Advocate-Generalfor the state, an official corresponding to the Attorney-General of India and having similar functions for the state.
He shall be appointed by the Governor of thestate and hold office during the pleasure of the governor.
Only a person who is qualified to be a judge ofHigh Court can be appointed Advocate-General.
It shall be the duty of the Advocate-General togive advice to the Government of the state upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred to him by Governor and to discharge the functions conferred on him by or under the Constitution or any other law for the time being in force.