Recently, the office of the Governor has attracted attention, albeit for the wrong reasons. The most persistent stand-off has been in Maharashtra and West Bengal. It has become a flashpoint in Telangana as well. There have been multiple instances when a Governor has demanded that government officials report to him directly. The Bombay High Court had to make strong observations on the ‘distrust’ between the Chief Minister and the Governor and had to impress on them the need to follow constitutional morality. While constitutional morality mandates harmony between high constitutional functionaries, this does not seem to be the case for the Governor–state government relationship. Primarily, this is because there is constitutional silence on this relationship. Thus, there is a need for reform.
The framers of the Constitution deliberately opted for the office of the Governor. The need was felt primarily due to the lack of experienced legislators at the time. While that has changed with legislators and legislative experience over the last 75 years, certain checks on the legislature are still needed. This is because the legislature tends to become populist at times, framing laws that may not be best for the State. Further, laws may be passed in a hurry or may need independent examination. This may not be possible in the courts because of the limits of judicial review. Hence, the Governor acts as a check against such tendencies of the legislature.
At the same time, it must be borne in mind that the Governor is not to function directly. This is because the Governor is not a direct representative of the people or answerable to people. In the Constituent Assembly, B R Ambedkar described the duties of the Governor: “One is that he has to retain the Ministry in office. Because the Ministry is to hold office during his pleasure, he has to see whether and when he should exercise his pleasure against the Ministry. The second duty which the Governor has, and must have, is to advise the Ministry, to warn the Ministry, to suggest to the Ministry an alternative and to ask for a reconsideration.” It is imperative that the tenets of democracy and duties be adhered to by the Governor for the true spirit of democracy to be upheld.
In practice, the Governor and the state government are often at loggerheads because there exist no clear guidelines/laws on how the Governor should act. At best, the constraining factor is conventions, which not only are not fully developed but also are a function of the inclinations of individuals. There always remains a looming perception that the Governor is a political appointee and is inclined to heed to the central government, more so when the parties in power in the state and at the Centre are political adversaries.
Per contra the present arrangement, such friction could be checked if the guidelines were clear and the independence and impartiality of the office of the Governor ensured.
The Supreme Court has time and again reiterated that the office of the Governor should be independent on account of its high constitutional importance. Recently, the courts have also held that constitutional morality requires high functionaries to sort out their differences and behave responsibly to better serve the citizens. This would require clearly laying down the norms.
Presently, the Governor is appointed by the President on recommendation from the Centre. Hence the perception of bias and its potential thereto. This could be addressed by appointing the Governor from a body comprising representatives of both the states and the Centre and also from the judiciary to ensure fair play. This would ensure that cooperative federalism is at play which, in fact, has worked quite well for India in terms of GST reform which functions through the GST Council with representatives of both the Centre and the states. It is not advisable to have a model of federalism that generates friction between state and Centre. The need is to act together as one unit.
Impartiality and independence of the office could be ensured by providing security of tenure. This has worked quite well in India where the judges of the High Courts and the Supreme Court and some other constitutional functionaries are given this status. This would mean that Governors make their decision in the public interest than in the political interest. The removal of the Governor could be done by the appointing committee. This again would ensure that both the Centre and the state have a say in the removal of the Governor.
These reforms would also ensure that the faith of the citizens in our democratic institutions increases, the scope for allegations of foul play is reduced, and energy is devoted towards better governance than to tussles over the functioning of the Governor.
(The writer is a student at the National Law School of India University, Bengaluru)