Is it the time to re-write job specs for Governors?
Tejinder Singh Bedi
As per provisions of Articles 157 and 158 of the Constitution of India — in order to be eligible for appointment as a Governor of a State, a person has to be a citizen of India, over 35 years of age while not being a member of any house of the parliament or any other state legislature besides not holding any other office of profit.
As such any person who has no formal education or qualification and may have been an MP or an MLA in the past as an independent or as an active member of any political party/parties supporting him/her is also eligible to be considered for appointment to the august position of the Head of a state, if he/she is above 35 and a citizen of India not holding any office of profit.
The requirement of not holding an office of profit is mandated to further ensure the independence of this position while preserving the separation of powers in any other official position no-longer permissible to be concurrently held by such a person.
Although eminent positions as those of the President of India, Vice President including Governors/Lt. Governors are expected to discharge their roles and responsibilities fairly and without any biases, the very fact that former politicians can and mostly get maximum opportunities to acquire such positions, they can hardly ever overcome the inherent element of subjectivity in their decision making powers for the past affiliations with such parties/groups and it becomes quite natural to first fall for protecting interests of the party that has ensured these positions for them.
The governors (including the lieutenant-governors/administrators) of our States (and Union Territories) enjoy similar powers and functions at the State/UT level as those enjoyed by the President of India at Union level. They are appointed by the President for a term of five years. A governor or a Lt Governor is expected to act only as a nominal head while the real power for governance and administration has to lie with the chief ministers and their council of ministers. In our country, a lieutenant governor is in charge of a union territory.
The primary function of the governor is to preserve, protect and defend the constitution and the law as incorporated in his/her oath of office under Article 159 of the Indian constitution in the administration of the State affairs. All his/her actions, recommendations and supervisory powers (Article 167c, Article 200, Article 213, Article 355, etc.) over the executive and legislative entities of a State are to be used to implement the provisions of the Constitution. In this respect, a governor thus has different types of Executive, Legislative and Discretionary powers.
For the executive powers vested by the Constitution in a Governor, he/she appoints the chief minister, (who enjoys the support of the majority in the Legislative Assembly), the other members of the Council of Ministers, (and distributes portfolios to them on the advice of the chief minister), appoints the Advocate General, the chairman and members of the State Public Service Commission, the State Election Commissioner, the judges of the District Courts and is consulted by the president in the appointment of judges of the High Courts. The Governor of the state by virtue of his office is also the Chancellor of most of the Universities in the State.
Among his legislative authority, the governor summons the sessions of both houses of the state legislature and prorogues them. The governor can dissolve the Vidhan Sabha acting according to the advice of the Council of Ministers headed by the Chief Minister and is also empowered under Article 192 to disqualify a member of a House of the State legislature when the election commission recommends that the legislator is no longer complying with provisions of Article 191. As per Articles 165 and 177, the Governor can ask the Advocate General to attend the proceedings of both houses of the state legislature and report to him any unlawful functioning if any.
In addition to the above important executive and legislative powers, the Governors also enjoy discretionary powers for selection of the chief ministerial candidate in situations when no party gets a clear majority and ask him/her to prove the majority as soon as possible. As such in the recent case in Karnataka, the incumbent Governor only seemed to have exercised his discretionary authority in deciding to administer the oath of office on May 17 to B S Yeddyurappa and to later prove his majority on the floor of the Assembly. This decision was taken late on the 16th evening, as everyone in the country was sure that the Congress-JD(S) alliance was likely to challenge the order and that by fixing the swearing-in at 9 am the next morning, it could perhaps completely stall the possibility of the court to give the alliance a hearing in the intervening period. It is a different matter that the Chief Justice of India promptly decided to grant them an immediate hearing and to reduce the timeline to prove majority on the floor of the house from 15 days to just 24 hours.
The term of governor’s office is normally 5 years but it can be terminated earlier by dismissal by the president (usually on the advice of the prime minister) at whose pleasure the governor holds office. Dismissal of Governors without valid reason is not permitted. However, it is the duty of the President to dismiss a Governor whose acts are upheld by courts as unconstitutional and malafide. Under Article 361 of the constitution, a governor cannot be summoned for questioning except on his voluntary willingness to testify in the court in support of his controversial deeds though any unconstitutional decisions taken by the governor can be declared invalid by the courts. The case would be decided by the courts based on the facts furnished by the union government for the governor’s role.
Considering the overall framework of the law and the Constitutional provisions it may be about the time to bring about major changes both in the eligibility criterion for consideration for appointment to such positions, the clarity on the powers exercisable under such ambiguous situations. Besides assuring the security of at least a full six-year term for all the Governors, provisions to ensure them immunity from the pressure tactics of political powers of any hues must also be considered. Furthermore, when all the successive and incumbent governments have been so concerned and specific about the qualifications and stature of exposure and experience for other perceived or planned independent positions of a Lok Pal, the CVC, the CIC, the CEC etc., why can’t we move to have Governors appointed only from among senior-most members of the judiciary, civil services, technocrats, academicians and media professionals only — who may also have their preferences for one or the other political party or ideology but in such crucial situations truly exercise their unbiased prudence and mind before arriving at seemingly partisan judgement? With more and more instances of holy and unholy alliances likely to mature by 2019 and equal prospects of many more hung verdicts, a change of mindset towards such a change seems over delayed already. Until then, the apex courts must come to safeguard democratic values against any such subjective decisions.