Brahma, Vishnu, Shiva: Delhi can create, use, destroy Governors at will

The CPI(M), Kerala’s ruling party, is asking for the power to remove the Governor. It is also questioning the constitutional need for the office of the Governor. If gubernatorial positions are a federal imperative, it says, a Central legislation should empower States to elect them through a representative electoral college.

The Kerala Cabinet is preparing a resolution to be introduced in the Assembly, seeking the dismissal of the Governor. The State is also asking for divesting the Governor of certain statutory positions like chancellor of universities.

This follows several disputes in Kerala between the State government led by Pinarayi Vijayan and Governor Arif Mohammad Khan. Recently, it was about the pension given to ministers’ personal staff with two years of service. Khan said it was unconstitutional, and that it reflected the abuse of power by the State government. He criticised the State government for appointing personal staff, who he claimed are party benefactors.

Earlier, there was a run-in over Khan’s role as the Chancellor of all the universities in Kerala. An issue cropped up over the reappointment of the existing vice-chancellor of Kannur University for a second term. Kerala also recently saw how the requisition to summon the House of Assembly was initially delayed; only after a second serious effort the Governor acted. Going by media leaks, the Governor was not inclined to read a particular paragraph of his first address to the joint session of the Kerala legislature prepared by the State government.

The debate around the Governor and the government, generated through media conferences and sometimes through media leaks, do not gel with the system of constitutional governance. It is also a matter of dignity of the office and independence of the academia.

Also read: Kerala govt seeks right to control and recall Governors

After experiencing several such controversies with Khan, the Chief Minister is looking for a significant change in the Constitution to alter the power of the institution of the Governor.

The ‘pleasure’ of Raj Bhavan

The elected governments in States are at the risk of losing the ‘pleasure’ of the Governor for reasons which are beyond constitutional norms.  In several States, Governors are not in good terms with the Chief Ministers. They, instead, oppose the views of the Chief Ministers by social media posts, holding press conferences, summoning civil servants, and so on. The Constitution is being turned into a platform for politicking.

Recently, Tamil Nadu Governor RN Ravi returned the National Eligibility-cum-Entrance Test (NEET) Bill passed by the State Assembly. There is already an ongoing battle between West Bengal Governor Jagdeep Dhankhar and Chief Minister Mamata Banerjee. Starting with the Howrah Corporation Bill, 2021 to the appointment of Vice-Chancellors in 24 State-run universities, the Governor objected to the functioning and the decisions of the State government. He raised as many as seven issues in 14 days.

The Federal webinar: Should post of Governor be scrapped?

The Doctrine of Pleasure is not absolute or unrestricted in India. It is severely curtailed in the case of government employment under Article 311 for civil servants. But this doctrine as applicable for the pleasure of the President is without any restrictions or limitations under Article 75(2) relating to ministers, Article 76 (4) relating to the Attorney General and Article 156(1) relating to Governors. Similarly, Articles 164(1) and 165(3) provide that the Ministers (in the States) and Advocate General for the State shall hold office with the pleasure of the Governor. It is, in fact, the pleasure of the Prime Minister.  It further practically translates into the pleasure of the ruling party.  The Doctrine of Pleasure of the Governor is now in juxtaposition to the democratic power of the Chief Minister.

We are a republic because the public representatives elect the President, as against the kings and queens ruling by succession in a dynasty. The elected President selects the Governor on the recommendation of the Prime Minister.

The Governor is a constitutional head of the State executive, and has, therefore, to act on the advice of a Council of Ministers under Article 163. The Governor is, however, made a component part of the State Legislature under Article 164, just as the President is a part of Parliament. In all these matters the Governor as the constitutional head of the State is bound by the advice of the Council of Ministers.

The history of the post

There is no provision in the Constitution to check the arbitrariness in selecting a person to the high office of Governor, with very high powers, and there is no fixing of any responsibility for anti-constitutional functioning. On the other hand, the President or Prime Minister are held accountable and can be removed.

During the negotiations for the integration of States into the present political form of India, the former princes and kings were given the status of governorship and asked to ‘rule’ from Raj Bhavan. It changed when statesmen and eminent political personalities were selected as governors.

There were certain political negotiations behind giving the ‘luxury’ position to former rulers. Burgula Ramakrishna Rao, who opposed the integration of Telangana with Andhra, was appointed as the Governor of Kerala in 1956 to facilitate the integration. He was the first Governor to use Article 356 to dismiss the elected government of Kerala. He was made the Governor of UP in 1960.

Similarly, Marri Chenna Reddy was appointed as the Governor of Uttar Pradesh in 1974 to defuse the separate Telangana agitation, after he merged a regional party with the ruling Congress then. Reddy was also made the Governor of Punjab (1982), Rajasthan (1992) and Tamil Nadu (1993-1996 until his death).

He became the Chief Minister of Andhra Pradesh by winning the elections as a Congress leader in 1978, after the Congress was split during Janata rule in Delhi. After a couple of years, Reddy was replaced with another Chief Minister in Andhra Pradesh, and then he was accommodated as Governor.  Reddy then fought against NT Ramarao’s Telugu Desam Party and won elections to become the CM in 1989. Again, for political reasons, he was accommodated as Governor of Rajasthan.

Delhi’s political tool

It is clear that the gubernatorial position was used for political negotiations. As these appointments were made down the decades, Delhi was using, abusing and misusing — besides not using when necessary — Article 356 to control State politics. The office of Governor has always thus acted as per the wishes of the Delhi rulers.

We have two examples of former Chief Justices of India being appointed in a few months after they demitted the high office — one as the Governor of a State, and the other as a member of the Rajya Sabha by nomination — which raises several doubts. These appointments were rightly criticised as interference with the independent judiciary, through the offer of a post-retirement position. Is it legal inducement?

Term and termination

While the Governor has a five-year term, it is not guaranteed that he or she will run the whole term. The President can sack a Governor before five years or extend his or her term, too. There is no provision to impeach or remove the Governor. Delhi has triple power as Brahma, Vishnu and Maheshwar to create, use, and destroy Governors at will — that is, at the whims and fancies of the ruling party.  The CPI(M) is asking for this new power. But can the State ask for this power without having any say in the appointment of the Governor?

(The writer is Dean, School of Law, Mahindra University, Hyderabad, and former Central Information Commissioner.)