From UPSC perspective, the following things are important :
Prelims level : Constitutional provisions
Mains level : Issues with the office of the Governor
- In recent years, there has been an erosion of constitutional provisions, constitutional morality, and constitutional ethos being witnessed among various constitutional bodies. The conduct of the Governors of some States has made a mockery of the Constitution and its limitations.
Constituent assembly debates about the Governor
- Exercise of Power according to constitution: In 1949, Prof. K.T. Shah debating Article 130 (now Article 154) said: “the Constitution should make it imperative upon the Governor to use its power in accordance with the Constitution and the Law, that is to say, on the advice of his Ministers as provided for in the subsequent clauses and in other parts of the Constitution.”
- Appointment of governor by president: It was hotly debated whether the Governor should be appointed by the President of India or should be elected. Fearing that this would create a parallel State leadership, the Assembly instead adopted appointment by the President.
- Good governor and Bad Governor: G. Kher said: “a Governor can do a great deal of good if he is a good Governor and he can do a great deal of mischief, if he is a bad Governor, in spite of the very little power given to him under the Constitution”
- Friendly intervention of the Governor: K. Sen said, “The question is whether by interfering, the Governor would be upholding the democratic idea or subverting it. It would really be a surrender of democracy. We have decided that the Governor should be a constitutional head. He would be the person really to lubricate the machinery and to see to it that all the wheels are going well by reason not of his interference, but his friendly intervention.”
- Aid and advice of cabinet: R. Ambedkar said, according to the principles of the New Constitution, Governor is required to follow the advice of his ministry in all matters. Therefore, the real issue before the House is not nomination or election, but what powers you propose to give to your Governor.
- Nomination of governor and not election: If the Governor is a purely constitutional Governor with no more powers than what we contemplate expressly to give him in the Act. I personally do not see any very fundamental objection to the principle of nomination.”
Constitutional Provision Regarding Governor
- Article 153: Provides a Governor for each State, and by virtue of Article 154, the executive power of the State shall be vested in the Governor “Shall be exercised by him directly or through officers subordinate to him in accordance with this Constitution”.
- Article 154(2)(a): Prohibits the Governor from exercising any function “conferred by existing law on any other Authority”.
- Article 163: Categorically provides that “there shall be a council of ministers with the Chief Minister at the head to aid and advise the Governor… except in so far as he is by or under this Constitution required to exercise his function or any of them in his discretion”.
How governor ideally supposed to conduct his duty?
- Shamsher Singh vs State of Punjab: The Supreme Court, in Shamsher Singh vs State of Punjab, decided on this issue in 1974: The Governor exercises “all his powers and functions” by making rules for the convenient transactions of the business of the government of the State in accordance with Article 166 of the Constitution. These are called Rules of Business.
- Satisfaction of governor is satisfaction of cabinet: The Court however amplified that “wherever the constitution requires satisfaction of the President or the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and 360. The satisfaction required by the Constitution …. is the satisfaction of the President or of the Governor in the Constitutional sense under the Cabinet system of the Government”.
- Use of discretion in harmony with council of ministers: The Court went on to hold that “the discretion conferred on the Governor means that as the Constitutional or the formal head of the State, the power is vested in him” and that it is only in the exercise of the power under Article 356 that the Governor will be justified in exercising his discretion even against the aid and advice of his council of ministers as per his discretionary power but, in all other matters where the Governor acts in his discretion, he will act in harmony with his Council of Ministers.
- No parallel administration by governor: The Constitution does not aim at providing a parallel administration. The basic philosophy is that in a democracy, the elected Ministers must accept responsibility for every executive act and that the Council of Ministers alone represents a responsible form of government in the States.
- Governor’s role is to assist the Chief minister of state and not creating the trouble for Chief Minister. Governor should not act in a manner that undermines the dignity of constitutional post of Governor. Governor must follow the constitutional morality while discharging his duty.