About the Authors
Anjali AM, 2nd year Unitary LLB Student, Government Law college Thiruvananthapuram
Sreelekshmi , 2ndyear Unitary LLB Student, Government Law college Thiruvananthapuram
INTRODUCTION
Federalism is an institutional mechanism to accommodate two sets of politics one at regional level and the other at the central level. Each government is autonomous in its own sphere.Usually the details of this dual system of government are generally spelt out in a written constitution, which is considered to be supreme and which is also the source of power of both the government.Even before independence most leaders of our national movement were aware that to govern a large country like, ours , it would be necessary to divide the powers between provinces and the central government. There was also awareness that Indian society had regional diversity and linguistic diversity. This diversity need recognition. People of different regions and languages had to share power and in each region people of that region should govern themselves. This was only logical if we wanted a democratic government. Due to vastness of the country which is as good as continent, unitary form of government is obviously, not feasible in our country.ie, The nucleus of a federal form of government was established by the Government of India Act, 1935. The same model was adopted by the founding fathers of our constitution later. But it is significant to realise that our Indian federalism is not strictly federal.A reference to the main features of independent India’s constitution will help in understanding how the framers of constitution intended to incorporate the federalism into the constitution and how the problem of centre and state relations emerged and subsequently aggravated. Here we have to note that the constitution of India does not even mention the word federalism. Also the constitution makers sought to blend the features of both the federal as well as unitary features. It is this attempt has given rise to endless friction between the centre and states.The constitution incorporated all the usual characteristics of a federal system. There are distribution of powers between the Union and States, written constitution, supremacy of constitution, independent judiciary, bicameral legislature etc. Besides the above federal features the Indian constitution also possess some unitary features. They are strong centre,indestructible states, single citizenship, flexibility of constitution, emergency provisions, integrated judiciary, Parliament authority over states, all India services, integrated audit machinery, appointment of governor etc. The necessity of strong centre was felt by the framers of constitution owing to historical and the other factors. They considered a strong centre as essential for preserving the country’s unity and newly won freedom. However this leads to various demands from the States. From time to time,states have demanded that they should be given more powers and more autonomy. This leads to tensions and conflicts in the relation between the centre and states. The legal disputes are resolved by the judiciary. The role of Governor assumed a great significance in centre state relations. As long as the Congress party had monopoly of power and was the ruling party both at the centre and in the States, the Governor had a limited role to play in centre state relations. But in 1967, the monopoly of congress Party was shattered and after 1980 most of the states were captured by parties other than the party in power at the centre. Thus the role of Governor assumed significance.
APPOINTMENT OF GOVERNOR
As centre state relations largely rely upon the actions of the Governor, he can make or mar the healthy relations between the centre and states. The constitution has given certain discretionary powers to the Governor. If he makes use of these powers sparingky, judiciously and impartially, the
tensions between the centre and the states would certainly be reduced. On the other hand if he acts with bias and at the behest of the Central Government, the tensions between the centre and states would undoubtedly enhanced. This is especially so because every state ruled by the party
other than that at the centre suspects the actions of the Governor and justifiably so since different stands in identical situations. Owing to this problems of far reaching importance relating to the role of Governor in the formation of the ministry or imposition of president’s rule have cropped up from time to time and a lot of misunderstanding between the centre and states has arisen.
The constitutional position of Governors has generated considerable controversy. Article 153 obligate that there shall be a Governor for each State but the same person can be appointed as Governor for two or more States. He is appointed by the president and holds office during the pleasure of the president. But otherwise, his term is for five years. The Sarkaria Commission pointed out that out of 154 appointments of Governors made between 1947 and 1986, 104 had served for less than five years. If a governor is to be removed,it should be given notice and
opportunity to state his version and the Government should lay on the table of the Lok Sabha, a statement concerning the removal of a Governor. Like the President at the national level, the Governor at the State level has to act in exercise of his functions in accordance with the aid and advice of the Council of Ministers except in matters where, under the Constitution,he is required to exercise his functions in his discretion. Some of the important discretionary powers of the Governor are appointment of the Chief Minister, dismissal of the Chief Minister and dissolution of the legislature.
The controversy surrounding the appointment of Governor can be said to be an additional rupture in the already strained centre state relations. In fact the controversy which arose especially after 1969, concerning the role of Governor is mainly due to the fact that the Governor is appointed by the president which means that in term of constitutional practice the Governor is actually appoint by the ministers of the President. Although Chief Ministers of states are informally consulted while making the appointment of Governors to their states, in practice, their opinion donot count for much. Since 1967 the appointment of Governor has been political. Persons who either belonging to the ruling party at the centre or are pliable have been appointed and used by the Centre to topple the non Congress Governments of the States.
It appears from the scrutiny of the appointment of Governors in various states that the Union Government has followed no particular principle and there is no fixed criterion for the appointment of Governors. In most cases the only criterion before the Central Government is that the person must be pliable and dance to the tune of the Central Government as well as serve the interests of the party in power at the centre. The Sarkaria Commission gave comprehensive guidelines for the appointment of Governors. It says, he should be a person from outside the state; he should not be intimately connected with the local politics in the state,and he should be a person who has not taken too great a part in politics generally, and particularly in the recent past.It also suggested that a politician from the ruling party at the Union should not be appointed as the Governor of the State which is being run by some other party.
The role and functions of the Governor as envisaged by the Constitution was that he was the key actor in the Centre-State relations. The Constitution provides that the executive power vested in him under Article 154 must be exercised by him. A few months ago, Telangana Governor Tamilsai Sounderrajan had also been similarly reminded. Punjab Governor Banwarilal Purohit has been pulled up for not signing Bills. Governor Arif Mohammed Khan has also been taken to the Supreme Court by the Kerala Government.
The journey of 75 years of constitutionalism in India provides the perfect context to revisit the idea of constitutional morality in light of the ongoing tussle between the governors and the elected governments, especially in Kerala, Maharashtra, Punjab, West Bengal and Tamil Nadu. The Supreme Court has expressed serious concerns about the delays by some of the governors in assenting to the Bills passed by the state legislatures. This violates the constitutional provisions and the doctrine of constitutional morality.The constitution of India has envisaged the role of the governor as custodian of constitutionalism in the respective states; however, owing to the nature of appointment using nominee/selection by the union government, most of the time, the governors abide by the obligation to the ruling dispensation rather than to the constitutionalism. This has deepened the crisis between the union and state relations by corroding the principle of cooperative federalism. The conduct of governor/s in these states has resurrected the question of the need to continue the governor’s office in parliamentary democracy.
The inordinate delay of governor/s in granting assent to the Bills has become the unwritten rule in some of these states, thereby diminishing the credibility of the institution of the governor. Misusing the governor’s office by the Union government in power is not entirely new. It has been in practice since 1950. This is true for the largest political alliances of NDA and UPA, led by the Bharatiya Janata Party and Indian National Congress, respectively.
The increased misuse of the governor’s office by the ruling governments for political reasons is the most destructive pattern in our democracy. The arbitrary use of Article 356 is one of the most commonly used political strategies through the governor’s office to dismantle the state-elected governments. Only the President of India, upon receiving a report from the governor, can proclaim an emergency in case of the state’s constitutional machinery failure.
Article 356 (1) of the constitution of India reads, “If the President, on receipt of a report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on by following the provisions of this Constitution…”
The word “otherwise” in the provision mentioned above is left undefined and gives scope for the use or misuse of the powers by the constitutional authorities to regulate the states’ acts. The original draft of the constitution did not contain the word “otherwise”. It is worthwhile to recollect the Constituent Assembly debates on Article 278 and present Article 356. Article 356 of the constitution must be seen in conjunction with Articles 352-359 and 360 (financial emergency) and not alone.
The Constituent Assembly was unhappy with this Article, especially H.V. Kamath, who objected to the word “otherwise” in the provision and moved an amendment to delete the word. He observed that if the amendment was not accepted, “we are laying ourselves open to snare traps in our path wherein we shall be caught beyond any rescue”. The current tactic of delay in assenting the Bills/laws passed by the state governments by some governors is another arm to suppress democracy and the state’s sovereignty.
The fact that there is a conflict between the governor’s offices and the elected governments is sad. The immediate consequences of this trend are
(i) affects public governance and administration
(ii) erodes the harmonious relationship between the state and the Governor’s office
(iii) destabilises the elected governments as they are under pressure of non-performing governance
(iv) corrodes the union-state relations. Overall, the federal scheme of the constitution is in a state of disequilibrium. Fostering Centre-state harmony was what the framers of the Constitution had in mind when they created the post of governor as the titular head representing the President in each state. But in these days of competitive politics, the post is no longer seen as a sinecure by its occupants in non-BJP ruled states. They tend to get adversarial, perhaps taking a leaf out of the then West Bengal governor Jagdeep Dhankhar’s book, who fought pitched battles with Chief Minister Mamata Banerjee and was rewarded with the high position of national Vice President. Strong Supreme Court observations like that latest on Kerala reappointing a vice-chancellor of a university, where it ruled that the governor cannot merely rubber-stamp an action taken elsewhere or simply endorse or ratify the decision of someone else (the CM) lends power to the position. But while doing due diligence, governors can’t sit on legislation indefinitely either.
By design or otherwise, Punjab, Kerala and Tamil Nadu knocked on the Supreme Court’s door around the same time complaining about pending bills, some as old as three years, drawing sharp comments from Chief Justice of India D Y Chandrachud. When governors subsequently cleared a few and pushed the others upstairs to the President for assent barely days before the hearings, they drew further adverse comments from the bench. The court now intends to frame guidelines for sending bills to the President. While judicial intervention does quicken the pace of gubernatorial action, whether or not it would be able to unclog the system for good remains to be seen. Confrontations between state governments and governors escalated after Narendra Modi began his second tenure as prime minister in 2019. Governments in West Bengal, Tamil Nadu, Telangana, Kerala and Punjab were particularly upset as their governors took inordinately long to accord assent to bills passed by their legislative assemblies. Governors, of course, have their own reasoning, but the Supreme Court didn’t see any merit in the hold-up.
Recommendations with respect to the Appointment of the Governor:
Sarkaria Commission formally known as the Commission for centre state relations. The commission aimed to enhance cooperation and coordination between centre and states.The Sarkaria Commission was concerned about appointment of governor also. Here Commission proposed following recommendations in its report ,
There should be a procedure of consulting the Chief Minister of the State, the Vice-President of India and the Speaker of Lok Sabha in the process of appointing a Governor.
• The State governments must be involved in the appointment of the governor with the formation of panels.
• Governors must be allowed to complete five years of their term in the office.
• The individual is required to be an eminent person.
• It is recommended that an individual appointed as the Governor must be from outside the state of appointment.
• A detached person who has never indulged in active or local politics will be eligible for the post of governor.
• The governor, after demitting the office, shall not be considered eligible for any other appointment or Office of Profit under the government. Postretirement benefits must be ensured to the person who held the position of governor.
The Emerging Significance of Sarkaria Commission
The Sarkaria Commission often gathers prominence whenever the office of the governor is called into question because of several political instabilities dominant within the states.In many instances, the Supreme Court has upheld the recommendations of the Commission and emphasised the urgent functioning of those recommendations to restore harmony between the Centre and State. With the recent tension in the states of Maharashtra (that experienced the unusual dissolution of the government), West Bengal and Karnataka, the credibility of the office of Governor has been questioned. Many experts believe that the country is in dire need to reform the governor’s office by bringing into force the recommendations of the Sarkaria Commission.The Sarkaria Commission report has proven to be a futuristic document that can be applied in many instances that took an attempt to disturb the federalism of the country. Therefore, the report of this commission is spelt out often to prevent the highhandedness of the centre over the doctrine of federalism. The Sarkaria Commission report remains a document of enormous essence to safeguard the democratic principles of this country and awaits its effective implementation
LANDMARK JUDGEMENTS
The Supreme Court’s judgement in Nabamrebia v.Deputy speaker1 clarified that the Governor’s discretion under Article 200 is limited to deciding whether a bill should be reserved for the President’s consideration.The Court also underscored that Article 163(2) must be read in conjunction with Article 163(1), suggesting that only matters expressly permitting the Governor to act autonomously are beyond the purview of judicial challenge.Therefore, withholding assent to a bill indefinitely is unconstitutional, and a Governor’s action or inaction in this regard can be subject to judicial review SR Bommai vs. Union of India, 1942The case was about the limits to the Governor’s powers in dismissing a state government under Article 356 of the Constitution. The floor of the Assembly is the only forum that should test the majority of the government of the day, and not the subjective opinion of the Governor. CONCLUSION
The need of the day is to appoint the right kind of person as Governor,ie,men, women or transgenders of some distinction and experience whose objectivity is beyond question,rather than old party hacks and others who are in searcg of a politicak sinecure or a temporary base from which to re enter politics at the first opportunity.If this is done,the Governors will not act as mere tools of the Central Government but will function independently.
