Gubernatorial appointments by the President of India

The recent nomination of Governors calls for a review of the gubernatorial appointments process

The recent appointment of five Governors by the President must be viewed with grave scepticism. By nominating persons who are deeply embedded within the Bharatiya Janata Party ecosystem, the Union Government has sent the clear and ominous signal that constitutional principles and judicial diktats are secondary to the propagation of the party’s ideology. This places the entire edifice of the Constitution in an extremely precarious position and calls for a review of the process of gubernatorial appointments.

The President appointed Bhagat Singh Koshyari, Bandaru Dattatreya, Arif Mohammed Khan and Tamilisai Soundararajan as Governors, and transferred Kalraj Mishra from Himachal Pradesh to Rajasthan. Mr. Mishra had assumed office at the Raj Bhavan in Shimla as recently as July 22, 2019. Seen as a whole, all these appointees have recent, strong and uncompromising links with the BJP. Mr. Koshiyari is a former Chief Minister of Uttarakhand and was a member of the 16th Lok Sabha; Mr. Mishra and Mr. Dattatreya served in the Council of Ministers under Prime Minister Narendra Modi; and Mr. Khan and Ms. Soundararajan unsuccessfully contested the 2004 and 2019 elections, respectively, on BJP tickets.

Constitutional position

The process of gubernatorial appointments is anything but transparent. We know little more than the fact that the President has appointed a person as Governor “by warrant under his hand and seal”. The Constituent Assembly debates on this issue reveal divergent views and considerable deliberation. On May 30 1949, Sardar Hukam Singh had argued in favour of providing a panel of names, elected by the State Legislature, for the President to choose from. Fellow member, Alladi Krishnsaswami Ayyar backed the appointment of a Governor by the President with the hope that the “Cabinet at the Centre would also be guided by the advice” of the State Cabinet.

Adding to the debate, G. Durgai Bai spoke in favour of an appointment mechanism in order to “place the Governor above party politics, above factions and not to subject him to the party affairs”. Supporting this proposition, Prime Minister Jawaharlal Nehru indicated his preference for a Governor who would be “acceptable to the Government of the province and yet he must not be known to be a part of the party machine of that province”. A cursory look at the Governors who have been appointed since 1950, under the Constitution, tells us that the fear expressed by the various members of the Constituent Assembly was not imaginary.

Law on appointments

A five-judge Bench of the Supreme Court looked at the scope of the Union’s power to remove Governors in the landmark case of B.P. Singhal v. Union of India (2010). In this case, the Supreme Court spoke about the dual role of the Governor — as the constitutional head of the State government and as a vital link between the State and Union governments. Elucidating the specific functions of the Governor, the Supreme Court, speaking through Justice R.V. Raveendran, said that the Governor is “not an employee of the Union Government, nor the agent of the party in power nor required to act under the dictates of political parties”. The Court further anticipated that there “may be occasions when he may have to be an impartial or neutral Umpire where the views of the Union Government and State Governments are in conflict”.

Over the years, the Sarkaria Commission on Centre-State Relations and the National Commission to Review the Working of the Constitution have reiterated that the Governor appointee “should be a person who has not taken too great a part in politics generally, and particularly in the recent past”. Unfortunately, the President has overlooked this important recommendation which is critical to the existence of a federal and constitutional democracy. As such, this reignites the debate around the office of the Governor, its appointments and processes involved.