The Hindu Editorial Analysis- 19th November 2022 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

The Governor is under the Constitution, not above it 

Context

In recent years, there has been a grave erosion of constitutional provisions, constitutional morality, and constitutional ethos being witnessed among various constitutional bodies.

How did the Post of Governor Come About?

• Before Independence:
  • Since 1858, when India was administered by the British Crown. Provincial Governors were agents of the crown, functioning under the supervision of the Governor-General.
  • With the Government of India Act, 1935, 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.
• Post-Independence:
  • The post of the governor was extensively debated in the Constituent Assembly, which decided to retain it while re-orienting its role from the British era.
  • Currently, under the parliamentary and cabinet systems of governance adopted by India, the Governor was envisaged to be the Constitutional Head of a State.

What are Constitutional Provisions Related to the Governor?

• Article 153 says that there shall be a Governor for each State. One person can be appointed as Governor for two or more States.
• The Governor is appointed by the President by warrant under his hand and seal and holds office under the pleasure of the President (Article 155 and 156).
• Article 161 states that the governor has the power to grant pardons, reprieves, etc.
• The Supreme Court stated that the sovereign power of a Governor to pardon a prisoner is actually exercised in consensus with the State government and not the Governor on his own.
• The advice of the government binds the Head of the State.
• Article 163 states that there is a council of ministers headed by the Chief Minister to aid and advise the Governor in the exercise of his functions, except some conditions for discretion.
• Discretionary powers include:
  • Appointment of a chief minister when no party has a clear majority in the state legislative assembly
  • In times of no-confidence motions
  • In case of failure of constitutional machinery in the State( Article 356)
• Article 200 gives power to the Governor to give assent, withholds assent, or reserves the bill for the consideration of the President passed by the Legislative Assembly.
• Article 361 states that the Governor of a State, shall not be answerable to any court for the exercise and performance of the powers and duties.

What Are the Issues Related to the Post of Governor in India?

• Affiliation Based Appointment: Politicians and former bureaucrats affiliated with the ruling party have been appointed in several instances as Governors.
  • This has led to questions about the post's impartiality and non-partisanship. Also, the convention of consulting the Chief Minister before appointing the Governor is often ignored.
• From Centre’s Representative to Centre’s Agent: Critics refer to governors as the ‘agents of the Centre’ today.
  • In 2001, the National Commission to Review the Working of the Constitution, held that the Governor owes his appointment and his continuation to the Union. Apprehensions exist that he will follow instructions given by the Union Council of Ministers.
  • This goes against the constitutionally mandated neutral seat and has resulted in bias.
• Misuse of Discretionary Powers: The discretionary powers of governor have been misused in many instances.
  • For instance, it has been argued by critics that the Governor's recommendation for President's Rule in a state has not always been based on 'objective material', but on political whim or fancy.
• Removal of Governors: Having no written grounds or procedures for removing governors, several times governors were removed arbitrarily.
• No Clear Distinction Between Constitutional and Statutory Role: The constitutional mandate to act on advice of the council of ministers is not clearly distinguished from the statutory authority as chancellor, resulting in many conflicts between the governor and the state government.
  • For instance, there was a recent appointment of a Vice Chancellor in a university by the Kerala Governor, bypassing government nominations.
• Constitutional Loopholes: In the Constitution, there are no guidelines for exercise of the governor’s powers in-case of appointment of Chief Minister or dissolving the Assembly.
  • Also, there is no limit set for how long a Governor can withhold assent to a Bill.
  • As a result, friction between the governor and concerned state governments is likely to arise.

What are Reforms Proposed by Various Commissions?

• Punchhi Commission: The impeachment procedure for the President can be adapted to impeach governors as well.
  • The Convention of Governors serving as Chancellors of Universities and holding other statutory positions should be abolished because it opens their office to controversies and public criticism.
• 2^nd Administrative Reforms Commission: The Inter-State Council should formulate guidelines on how governors should exercise discretionary power.
• Rajamannar Committee: The Rajamannar Committee emphasised that the governor of the state should not consider himself as an agent of the centre but play his role as the constitutional head of the State.
• Sarkaria Commission: In its report, the Commission recommended that Article 356 should only be used in very rare instances when it is impossible to prevent a breakdown of constitutional machinery within a State.
• Venkatachaliah Commission: It recommended allowing Governors to complete their five-year terms ordinarily.
  • The central government should consult with the Chief Minister before removing them before the end of their term.

What Should be the Way Forward?

• Reimagining Appointment Procedure: It would be appropriate to devise a committee comprising the Prime Minister, the Home Minister, the Speaker of the Lok Sabha and the Chief Minister of the State concerned to select the Governor.
• Neutral Constitutional Stand: The Governor is supposed to be an independent, non-partisan person. He/she is supposed to keep the interests of the State in mind and also ensure that the link between the State and the Centre is maintained in a smooth way.
• Framing a Code of Conduct: There is a need to devise a 'Code of Conduct' that should define certain 'norms and principles' that should guide the governor's discretion and constitutional mandate.
• Discretion must be a choice dictated by reason, actuated by good faith and tempered by caution.

Malady and remedy 

Context

• The collegium system of making appointments to the higher judiciary has come under focus, largely due to critical remarks made by Union Law Minister Kiren Rijiju. 
• A lawyer has now formally approached the Supreme Court for reconsideration of its 2015 judgment striking down the Constitution amendment and the law creating a National Judicial Appointments Commission (NJAC). 
• While the petition will be “listed in due course”, there is another aspect that fags the tension between the Government and the judiciary over judicial appointments

What is a Collegium System and How Did It Evolve?

• About:
  • It is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.
• Evolution of the System:
  • First Judges Case (1981):
    • It declared that the “primacy” of the CJI’s (Chief Justice of India) recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
    • The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
  • Second Judges Case (1993):
    • SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
    • It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
  • Third Judges Case (1998):
    • SC on the President's reference (Article 143) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

Who Heads the Collegium System?

• The SC collegium is headed by the CJI (Chief Justice of India) and comprises four other senior most judges of the court.
• A High Court collegium is led by the incumbent Chief Justice and two other senior most judges of that court.
• Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.

What are the Procedures for Judicial Appointments?

• For CJI:
  • The President of India appoints the CJI and the other SC judges.
  • As far as the CJI is concerned, the outgoing CJI recommends his successor.
  • In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
• For SC Judges:
  • For other judges of the SC, the proposal is initiated by the CJI.
  • The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
  • The consultees must record their opinions in writing and it should form part of the file.
  • The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
• For Chief Justice of High Courts:
  • The Chief Justice of the High Court is appointed as per the policy of having Chief Justices from outside the respective States.
  • The Collegium takes the call on the elevation.
  • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
  • The proposal, however, is initiated by the outgoing Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
  • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

What are the Issues Related to the Collegium System?

• Exclusion of Executive:
  • The complete exclusion of the executive from the judicial appointment process created a system where a few judges appoint the rest in complete secrecy.
  • Also, they are not accountable to any administrative body that may lead to the wrong choice of the candidate while overlooking the right candidate.
• Chances of Favouritism and Nepotism:
  • The collegium system does not provide any specific criteria for testing the candidate for the post of CJI because of which it leads to wide scope for nepotism and favouritism.
  • It gives rise to non-transparency of the judicial system, which is very harmful for the regulation of law and order in the country.
• Against the Principle of Checks and Balances:
  • The principle of check and balance is violated in this system. In India, three organs work partially independently but they keep check and balance and control on the excessive powers of any organ.
  • However, the collegium system gives Judiciary immense power, which leaves little room for checks and poses the risk of misuse.
• Close-Door Mechanism:
  • Critics have pointed out that this system does not involve any official secretariat. It is seen as a closed-door affair with no public knowledge of how and when a collegium meets, and how it takes its decisions.
  • Also, there are no official minutes of collegium proceedings.
• Unequal Representation:
  • The other area of concern is the composition of the higher judiciary, women are fairly underrepresented in the higher judiciary.

What were Attempts to reform the Appointment System?

• The attempt made to replace it by a ‘National Judicial Appointments Commission’ (through Ninety-ninth Amendment Act, 2014) was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.

Way Forward

• Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalise the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
• It should ensure independence, reflect diversity, demonstrate professional competence and integrity.