From UPSC perspective, the following things are important :
Prelims level : Discretionary power of Governor
Mains level : Paper 2- Governor-Government conflict
Recent media reports about the confrontation between the Governors and the State governments, in Maharashtra and Kerala, have turned the spotlight on the rather delicate relationship between the constitutional head of the State and the elected government.
Recent incidents of confrontation
- In Maharashtra, the Governor refused to accept the date of election of the Speaker recommended by the State government.
- The Constitution has not assigned any role to the Governor in the election of the Speaker under Article 178, which is exclusively the job of the House.
- The Governor’s refusal to accept the date of election of the Speaker goes against the principles of constitutional government.
- In Kerala, the State Governor having reappointed the Vice Chancellor of Kannur University in accordance with the law, made an allegation that he was under pressure from the Government to reappoint the Vice Chancellor.
- In fact, he or she can accept suggestions from any person including the Leader of the Opposition in the Assembly.
- However, the Governor as Chancellor is not required to act on the advice of the Council of Ministers in the matter of appointment of Vice Chancellor and others in the university.
- He can act absolutely independently.
- Non-acceptance of the advice of the Council of Ministers too has been witnessed in Rajasthan as well as Maharashtra again.
- The Kerala High Court has clarified this legal point in Gopalakrishnan vs Chancellor, University of Kerala.
What explains the confrontational relationship between Governor and State Government?
- Historical background: It has something to do with the whole idea of the office of the Governor and its past history.
- In the colonial era, the Governor was the absolute ruler of the province.
- While making the Constitution, there were divergent views on the powers to be given to the Governor in the Constituent Assembly.
- There were members in the Assembly who wanted the Governor to be as powerful as the colonial-era Governors.
- Discretionary powers: Though B.R. Ambedkar was clear that the Governor should only be a constitutional head and the executive power should vest entirely in the elected government.
- He promoted the idea of vesting certain discretionary powers in the Governor.
- Why discretionary powers? In this respect he was guided by the thinking that the State governments are in subordination to the Union government and, therefore, the Governor should be given discretionary powers to ensure that they act so.
- So, ultimately, the Governor is given certain discretionary powers prescribed by or under the Constitution unlike the President of India who has not been given any such powers.
- Vagueness about actual powers: Further, Article 163 became a ‘blind reproduction of Section 50 of the Government of India Act 1935’ (H.V. Kamath).
- This exact reproduction of the provision in the Act of 1935 has, to a great extent, introduced a vagueness about the actual powers of the Governor vis-à-vis the elected government.
- This vagueness was corrected only with the Supreme Court of India stating the law in unambiguous terms in Shamsher Singh (1974).
- From Shamsher Singh to Nabam Rebia (2016) the Supreme Court declared that the Governor can, in the exercise of executive power of the state, act only on the aid and advice of the Council of Ministers “…save in a few well-known exceptional situations”.
Consider the question “The relationship between the Governor and Chief Minister has, even at the best of times, not been absolutely simple and tension free. What are the factors responsible for confrontation? Suggest the way forward.”
The Governor is a high constitutional authority. He needs to function within the four walls of the Constitution and be a friend, philosopher and guide to his government.