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GOVERNOR: A HINDRANCE IN SMOOTH FUNCTIONING OF DEMOCRACY
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GOVERNOR: A
HINDRANCE IN SMOOTH FUNCTIONING OF DEMOCRACY
AUTHORED BY - KUMAR DHRUVA
(A3256120082)
& UNNATI BALYAN (A3256120085)
Amity Law School, Amity University
Abstract:
Indian Democracy is the largest
democracy in the entire world showcasing the immense power of the common people
in the governance of a country. Democracy means governance by the people, for
the people and of the People. The key purpose of democracy stands defeated when
there is an involvement of an autocratic power in decision making. The
governors of states in India are appointed by the President on the advice of
Council of Ministers. The procedure of appointment hereby questions the
democratic stance of a country as the Governor would be loyal to the Central
Government who is indirectly involved in its appointment and not to the people
of his state. My research attempts to understand this gap in a democratic set
up and how it affects the overall State governance. Moreover, there have been
various cases in the past which have shown that the Governors have misused
their discretionary powers to fulfill their incentives. Some of these cases
include SR Bommai vs Union of India, and the political crisis in the states of
Arunachal Pradesh, Uttarakhand, and Bihar. Thus, my paper further focuses on
these cases and their judgements to highlight the aspects in which Governor has
proven to be a roadblock in smooth governance. The aim of my research is to
analyze the previous cases and their judgements under the constitutional
framework and understand that how a Governor who, has a powerful status in
Indian Constitution, has quite often proven to be a hindrance in democratic
governance of India.
Keywords: Governor, Spirit-of-Nonpartisanship, Hindrance, Democracy,
Autocracy.
Introduction
Section 49 of Government of India
Act, 1935 stated that the executive authority of a province shall be exercised
by the governor. The governor was answerable to the king sitting in England.
There was a lot of debate in the constituent assembly regarding the post of
Governor. Pandit Thakur Bhargava vehemently opposed upholding the post of
governor, as he believed that powers vested with the governor were too
discretionary in nature and the governor could function autocratically. The
Constituent assembly adopted a lackadaisical approach with respect to the post
of the governor. All the provisions relating to governor were passed in a
single day. K.V Rao, an eminent political scientist said that the whole
structure, along with provisions relating to governor, was designed in a manner
that enabled the Congress to hold on to power for a long time. Tiruvellore
Thattai Krishnamachari while speaking in the constituent assembly said: “I
would at once disclaim all ideas at any rate so far as I am concerned, that we
in the house want the future governor who is to be nominated by the president
be in any sense an agent of the central government. I would like that point to
be made very clear because such an idea finds no place in the scheme of
government we envisage for the future”[1].
K. Subba Rao also supported it and said that governor should not act as an
agent of central government. B.R. Ambedkar emphatically believed that Center
could intervene in the local matters/politics of the state when the government
is not functioning in consonance with the provisions laid down for the
constitutional governance of the state. He further refused to address the point
raised by Pandit Thakur Das Bhargava.
To understand the role of a Governor
it is imperative to review the definitions as provided in Articles 153-156 in
the Indian Constitution. Article 153, Governor of states – There shall be a
governor for each state: [provided that nothing in this article shall prevent
the appointment of the same person as governor of two or more states].[2]
Article 154, Executive power of the state shall be vested with the governor and
shall be exercised by him directly or through officers’ subordinate to him in
accordance with the constitution.[3]
Article 155, Appointment of governor, the Governor of a state shall be
appointed by the President by warrant under his hand and seal.[4]
Article156, Term of office of governor- (i) The governor shall hold office
during the pleasure of the president.[5]
Hence, we can infer from the above
articles that governor functions as a link between the union and the state
governance, and acts in dual capacity both as constitutional head of the state
as well as representative of the union. However, since its inception, the post
of governor has not brought up any noteworthy positives to the functioning of
the democracy instead it has amassed many negatives. The post of governor has
been reduced to a retirement package for most politicians, for being loyal and
faithful to the government of the time. To highlight the power and
responsibility of a governor, the importance of spirit of non-partisanship and
discretionary powers of the governor have been discussed below.
Spirit of Nonpartisanship: The
Central government is responsible to nominate the governor for each state.
After his appointment by the President, governor starts working as an agent of
the center. Hence, the doctrine of nonpartisanship gets destroyed by the
constitution itself, due to the provisions laid down for his appointment. The
power of the President and the governor is based on the role of a monarch in
the Westminster system, where the monarch is above politics. This scenario
cannot be applied to in India as Governors strive to play an active role in
politics.
Discretionary Powers: B. R. Ambedkar,
in his speech on constitutional role of the governor, described how the
governor should use his discretion not as “representative of party” but as
“representative of people”[6].
Article 356, that empowers the President to impose President’s rule in a state
upon the recommendation of the Governor, is the most powerful discretionary
power of the Governor. Article 356 has been derived from section 93 of the
government of India Act, 1935, which provided for Governor’s rule in the
provinces.
There are numerous examples of how
the governor has not enhanced the functioning of democracy and has instead
tried to breakdown the constitutional mechanisms. History has testified to the
flagrant misuse of Article 356 which has been revoked by the center multiple
times so far. The hopes and beliefs of Dr B. R. Ambedkar in the post of
Governor, have been repeatedly crushed and thrown to the winds. The landmark
cases which highlight the autocracy of the governor at the cost of democracy
have been analyzed below.
Sr Bommai Vs Union of India [1994]2
Scr 644: Air 1994 Sc 1918:(1994) Scc 1:
SR Bommai was the Chief Minister of
the government formed by Janta Dal Party in Karnataka between August’ 98 and
April’ 89. His government was dismissed under article 356 on 21st
April 1989, as they lost their majority owing to large number of defections
from the party. Governor P. Venkatasubbaiah did not give an opportunity to
Bommai to prove majority in the floor test. Bommai went to court against
governor’s decision to recommend president’s rule. The High Court dismissed his
writ petition, which forced him to appeal to the Supreme Court.
Supreme Court Judgement: On March 11,
1994, a nine-judge bench of Supreme Court issued a historic order. The verdict
concluded that the power of president to dismiss a state assembly is not
absolute. The judgement said that the President should exercise the power only
after his proclamation is approved by both the houses of the parliament. This
verdict put an end to the arbitrary dismissal of the state government by the
central government. The verdict also ruled that the floor of the assembly is
the only forum that should test the majority of government of the day, and not
the subjective opinion of the governor, who is often referred to as an agent of
the central government.
The first instance of the impact of
the case was seen when, the Vajpayee government in 1999 was forced to reinstate
a government it dismissed. The Rabri Devi government which was sacked on
February 12,1999 was reinstated on March 8,1999 when it became obvious that
central government would suffer a defeat in the Rajya Sabha over the issue.
Arunachal
Pradesh Political Crisis
Arunachal Pradesh was in deep
constitutional turmoil between November 2015 and March 2016.
The ruling party was Congress and had
a majority of 47 members, while BJP was the lead opposition with 11 members
aided by 2 independent members. On 3rd of November 2015, the 11 BJP
members and 2 independent members asked the governor for:
1. Removal of
the speaker of the assembly i.e. Nabam Rebia.
2. Preponing
of the next session of the assembly.
On 16th December, the
assembly was called which was attended by only 33 MLAs. The house passed a
resolution to remove the speaker. On the next day of the session, which was
held in a hotel, Nabam Tuki was removed as the Chief Minister, and Kalikho Pul
was made the Chief Minister. Pul was the leader of the congress members who had
rebelled and were 14 in total. The Governor also demanded for president’s rule.
Nebam Rebia moved to the High court regarding preponement of the joint session
and the related events.
High Court Judgement: The Guwahati
High Court ruled that neither the governor’s discretion nor the proceedings of
the assembly could be challenged in the court of law under Article 163 and
Article 212 of the constitution. As a result, the court held that the actions
of the assembly and the governors were totally legitimate and within the law.
Nebam Rebia subsequently moved to the Supreme Court regarding the same.
Supreme Court Judgement: The
Constitutional bench of Supreme Court unanimously quashed Arunachal Pradesh
governor’s order to prepone the assembly session from January 14, 2016 to
December 16, 2015. Justice Khehar mentioned “governor cannot require the
speaker to discharge his functions in the manner he considers constitutionally
appropriate”[7]. The
court also held that what happens within the four walls of a political party is
none of governor’s concern and he must work in a free and independent manner.
Owing to the judgement, the Nabam Tuki government was restored in the state of
Arunachal Pradesh.
Uttarakhand Political Crisis:
On 18th March 2016, 9
rebel congress MLAs joined BJP and demanded for division of vote. If the budget
had failed to pass, the Harish Rawat government would have fallen, since the
issue in question was a case of money bill. But the speaker refused division of
votes and passed the bill by voice note. The rebel congress leaders and the BJP
went to the governor demanding dissolution of the assembly. The then Governor
(Krishan Kant Paul) announced a suspended animation in the house, that meant
that the house was not dissolved but the Harish Rawat government had to pass
the floor test by 28th March. The governor sent his report of the
current situation to the union cabinet. The Union Cabinet recommended the
President for the imposition of the President’s rule in the state. This
inflamed Congress, who moved to High court.
High Court Judgement: The High Court
bench, consisting of chief justice KM Joseph and justice VK Bist, said: “Even
the President can go wrong”[8].
They further added that we do not follow any kingship or absolutism, Law is
above all. The High Court also slammed the Center saying that it was working as
private company, which is quite dangerous for smooth functioning of the
democracy. It was also made clear that that even decisions of the President and
the Governor can come under Judicial Review. This decision was then appealed in
the Supreme Court.
Supreme Court Judgement: The Supreme
court ruled that the floor test was a mandatory procedure before the
dissolution of the assembly and President’s rule can be lifted for one or two
days for conduct of floor test. Hence, as a result, the floor test was
conducted in the state of Uttarakhand, and the Harish Rawat led congress
government returned to power.
Bihar Political Crisis:
As no party got the required mandate,
Bihar witnessed a hung assembly in 2005 general assembly elections. On March 6th,
Bihar was put under president’s rule. After a month and a half, NDA claimed
that it has the numbers to form the government having support of 115 MLAs, out
of 243 constituencies in total. Governor Buta Singh on April 27th
wrote a letter to the congress ruled central government that NDA was
horse-trading Lok Janshakti party members to stake claim to form the
government. The governor recommended for dissolution of the assembly. The union
cabinet accepted the recommendation. The letter of dissolution was sent to then
president APJ Abdul Kalam who was in Moscow during those days. At midnight, APJ
Abdul Kalam signed the dissolution letter and the Bihar assembly was dissolved.
Elections were again held in Bihar in
October and November and it resulted in a Nitish Kumar led NDA coming to power
displacing the regime of Lalu Prasad led RJD.
Supreme Court Judgement: When the
case came to the notice of Supreme court, Supreme Court rapped Bihar’s Governor
Buta Singh. Then Chief Justice of India Y K Sabharwal
observed: “All canons of propriety were thrown to the wind …. Undue haste made
by the governor smacks of mala fide intent.”[9]
The Supreme Court also judged that there was nothing that can justify the act
of the governor and hence was totally undemocratic. The Supreme Court also said
that the council of ministers should verify the reports of the governor instead
of just trying to topple the state government machineries. The Supreme Court held
that Buta Singh clearly mislead the council of ministers by his incompetent
reports.
The magnitude of mala
fide intent in dissolving the assembly of Bihar can be seen from the fact that
after the Supreme Court judgement, APJ Abdul Kalam wanted to resign as he knew
he has assented to something that was totally unconstitutional.
The aforementioned cases
are the witness of the autocratic power of the Governor and its impact on the
Indian democracy. Urgent actions are needed to save the principal purpose of democracy
and put things under control. Some measures have been recommended below which
could prove beneficial in the rectification of the loopholes in the functioning
of the Governor.
Measures
and Suggestions
There is an urgent need
to improve the functioning of mechanism of governor in a state, as abolishment
of the post of governor is an objectionable idea that will hamper the
federalist structure in India. So, a better approach would be to formulate a
policy on how a governor can become an independent body in practise, akin to
what it is on paper.
My first recommendation
is to conduct indirect election for the post of governor, wherein the voters
will be from legislative assembly and legislative council (if applicable). This
would aim to diminish Center’s role in appointment of the governor and its
control over the Governor. The governor can also work independently without
pressure from Center. Policy of non-partisanship would be of a significant
value if ensued and followed.
There should be a change
in procedure for the removal of the governor as well. Currently he holds the
office in accordance with the pleasure of the president, which restricts his
independent functioning as he takes decision under the influence of the Union
Executive. My next recommendation is to implement a fixed tenure for the
governor which includes an impeachment process, not by the union legislature,
but by the state legislature itself, similar to the process of impeachment of
President at the Union level.
We can also draw some
recommendations from the Sarkaria commission and the Punchi commission to
rectify the defects in the functioning of governors of the state. Sarkaria
commission recommended that the governor must not have participated in active
politics before his appointment for the same. The Sarkaria commission also
recommended that if the Center and the State is ruled by two different
political parties then governor should not belong to ruling party at the
Center. But in current scenario this practise is hardly followed. It was also
recommended by the Sarkaria commission that the Chief Minister of the state
shall be consulted for appointing the governor of the state. Punchi commission
recommended that doctrine of pleasure should be deleted from the constitution.
It also recommended a committee to be established for appointment of the
governor. The committee must include Prime Minister, Home Minister, speaker of
Lok Sabha, and Chief Minister of state. The Vice President can also be
involved. Idea of addition of speaker of legislative assembly to the committee
was also recommended to make the proportion balanced.
In constituent assembly,
Biswanath Das, who was against the post of governor mentioned “that democracy
and autocracy cannot function together”[10].
It is high time to act against autocracy for the betterment of democracy.
Governor is an important constitutional body for proper functioning of
democracy but, if it is not allowed to work independently, it can be the key
reason for constitutional failures across the states.
[1]
https://shodhganga.inflibnet.ac.in/bitstream/10603/132593/12/12_chapter%204.pd
[2] Constitution of India bare act
[3] Constitution of India bare act
[4] Constitution of India bare act
[5] Constitution of India bare act
[7] https://www.thehindu.com/news/national/SC-quashes-Arunachal-Governors-order-restores-Tuki-govt.-to-power/article14486816.ece
Article Information
GOVERNOR: A HINDRANCE IN SMOOTH FUNCTIONING OF DEMOCRACY
Authors: KUMAR DHRUVA, UNNATI BALYAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/28
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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