Our Governors must go to law school, learn principles of Federal Constitution

It is unfortunate that people holding high positions like that of Governor should be irresponsible. There is, perhaps, a need for them to take lessons from a school of law about the Constitution of India. They should be told that the state executive is made up of the Governor, the Chief Minister, the Council of Ministers, and the Advocate-General of State. The Governor is the titular head of the state government.

Articles 153-167 of the Constitution deal with the provisions related to state governments. The Governor has the duty to learn the principles of the federal constitution and know that she/he is only a titular or constitutional head and, at the same time, an agent of the Centre, which nominates the Governor for each state. An “agent” here means a “representative” of the system.

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The statute in Article 164 says that the Governor will appoint the chief minister and that the other ministers will be appointed by him on the advice of the latter. The ministers, it says, will hold office during the “pleasure of the Governor”. In addition, Article 163 essentially requires the Governor to act on the “aid and advice” of the council of ministers headed by the chief minister of the state.

On February 16, 2021, Kiran Bedi, the Lieutenant Governor of Puducherry, was replaced by Telangana Governor Tamilisai Soundararajan, who was given this additional charge despite controversial activities in Telangana. The Maharashtra government, too, had constant dissatisfaction with its former Governor Bhagat Singh Koshyari, and so has Kerala with Arif Mohammed Khan.

An “agent” of the Home Minister?

Unlike the Presidential elections, there is no direct or indirect election for the post of Governor, and there is no provision to “remove” the Governor either in the scheme of the Constitution. Since the Governor holds the office under the pleasure of the President, his office has no fixed term. The President can remove the Governor, and the grounds upon which she/he may be removed are not laid down in the Constitution.

The Home Minister, however, has complete authority to remove the Governor, because of which the office sometimes acts as an “agent” of the Home Minister. The Governor may also get transferred from one state to another by the President. She/he can also be reappointed. Every executive action the state government takes is to be taken in the Governor’s name. The Governor can specify the rules of how an order taken in her/his name is to be authenticated.

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The Governor, in effect, is just a “head” without any “powers”. The Governor of any state, whether Tamil Nadu or Telangana, cannot “rule” or “rule out” any decision of any part of “governance” in the present system of the federal constitution. So, how can one claim to “remove” a minister of an elected government (though, fortunately, the minister was “restored”)? The Tamil Nadu government cannot run by the advice of the Home Minister in Delhi, but by the Chief Minister.

Article 163(1) makes it clear to all Governors that they can exercise only such functions in their discretion that they are expressly required to, acting by the Constitution. The Governor can summon, prorogue, and dissolve the House only on the aid and advice of the council of ministers with the chief minister as the head, and never on his own.

The Tamil Nadu case

It seems the Raj Bhavan in Chennai depended on what “appeared” and some “allegations” besides “some inputs” received by the Governor, which were “substantiated” enough to dismiss a minister without the “aid and advice” of the Chief Minister. Did the Governor act on an assumption based on the Raj Bhavan’s message that “there are reasonable apprehensions that continuation of Thiru V Senthil Balaji in the Council of Ministers will adversely impact the due process of law including fair investigation that may eventually lead to breakdown of the Constitutional machinery in the State”?

The Tamil Nadu Governor reportedly reversed his decision to sack Balaji from the state Cabinet within hours of “rubbing the DMK the wrong way” following a “hurried advice” from the Union Home Minister, reports quoting the contents of a letter written by the Governor have said. His communication read: “I have been advised by the Union Minister of Home Affairs that it would be prudent to seek the opinion of the Attorney General also.” The media quoted him: “…accordingly, I am approaching the Attorney General for his opinion. Meanwhile, the order of dismissal of the minister V Senthil Balaji may be kept in abeyance until further communication from me.”

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The Governor, offering a long explanation, reportedly said: “I am conscious that under ordinary circumstances, a Governor acts on the aid and advice of the council of ministers. However, in the instant case your advice or, to put it more appropriately, your insistence to retain V Senthil Balaji against my advice as a member of the council of ministers reflects your unhealthy bias.”

What Supreme Court said

The Raj Bhavan should have taken a lesson from a recent Supreme Court judgement. In the Nabam Rebia and Bamang Felix vs Deputy Speaker and Others case, a Constitution Bench explained the question of the Governor’s discretion in great detail. Answering a question, the court cited Article 163(1) and said the Governor was not authorised to act independently without the aid and advice of the chief minister and his council of ministers.

Justice Madan Lokur held that “the Governor was obliged to adhere to and follow the constitutional principle”, that is, to be bound by the advice of the council of ministers. If that advice was not available and responsible government was not possible, the Governor can resort to “breakdown provisions” and leave it to the President to break the impasse”.

Justice Lokur added: “…if the Governor chooses to ‘withdraw his pleasure’ in respect of a minister, he must exercise his discretion with the knowledge of the Chief Minister and not by keeping him in the dark or unilaterally.”

While explaining the powers of the Governor, the statute specifically says the Governor would not need this advice if the Constitution requires him to carry out any function at his discretion. And, it also explains “when they need to act on the advice of the council of ministers and when they can use their discretion”.

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In the landmark Shamsher Singh & Anr vs State Of Punjab case in 1974, the Supreme Court elaborated on the “discretionary powers” of the President of India and the Governors. The Supreme Court explained: “…the President and Governor, custodians of all executive and other powers under various Articles, shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations.”

There are two things that should happen now. One, the Governors should learn the meaning of the rule of power from a school of law immediately. And two, the occupants of Raj Bhavan should be dismissed by the powers that be in Delhi.

(The writer is a former Central Information Commissioner.)

(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not necessarily reflect the views of The Federal.)