Gubernatorial restructuring

The appointment and tenure of Governors need to undergo radical reform

The actions of the Maharashtra Governor over the last few days have invited scrutiny. From the early morning swearing-in ceremony to the unceremonious pre-floor test resignation of Devendra Fadnavis and Ajit Pawar, Raj Bhavan has found itself in the centre of controversy.

Soon after the Karnataka Assembly elections earlier this year, the actions of the Karnataka Governor were also subjected to judicial scrutiny on aspects of the discretionary powers of the Governor with regard to formation of government. Nevertheless, this week, the Supreme Court had another occasion to reaffirm the law. However, it is unlikely that these controversies will be resolved until there is a constitutional restructuring of the office of the Governor.

The Centre and its Governor

In April 1948, the Drafting Committee of the Constitution insisted on omitting all references to the discretionary powers of the Governor. On May 31, 1949, B.R. Ambedkar said in unequivocal terms that the Governor “is required to follow the advice of his Ministry in all matters”. However, it is trite that the Governor is required to exercise discretion in deciding the formation of government when there is no clear post-poll majority. Here, the cases of S.R. Bommai v. Union of IndiaRameshwar Prasad v. Union of India, and Nabam Rebia v. Deputy Speaker provide unambiguous judicial guidance to how the office of the Governor must encounter tricky post-poll claims to form government and stay immune to political bias.

Unfortunately, the appointment process of Governors has made the office vulnerable to the influence of the Union government. Over the years, occupants of this office have continued to look towards New Delhi for guidance. The dangers of this habit are cautioned by lawyer and constitutional expert A.G. Noorani, who argued that a “state’s autonomy comes to naught if its people’s mandate can be defied or ignored by a central appointee.”

In the Karnataka and Maharashtra cases, it is evident that the Governors invited the leader of the BJP when they did not have the support of the majority in the respective Legislative Assemblies. It begs the question what claims of support were made by the BJP leaders to the Governors and how the Governors satisfied themselves of these claims when there was verifiable, adverse information available in public. The Raj Bhavan in Mumbai also witnessed a curious swearing-in ceremony which happened with little or no public notice. Such actions create a reasonable apprehension that the office of the Governor is open to be manipulated and misused in furtherance of political partisanship. This strengthens a call to review and restructure the office of the Governor if its constitutional values are to be safeguarded.

Constitutional correction

There is little doubt that the appointment and tenure of Governors need to undergo radical reform. The Justice P.V. Rajamannar Committee, which was tasked by the Tamil Nadu government to look into Centre-State relations in 1969, recommended that State governments be included in the appointment process of Governors to drastically reduce their discretionary powers. The call to rectify the imbalance in Centre-State equations must begin with such a reform.

Furthermore, for too long, Governors have enjoyed a legal immunity, granted by the Constitution, on account of their sovereign functions. Over the years, the Supreme Court has confirmed its powers to review the actions of the Governors. Any decision of the Governor can be subjected to judicial scrutiny, including the materials placed to arrive at that decision. However, there is a compelling case that the Westminster model of sovereign and symbolic head of state is past its expiry date. The powers and privileges that are attached to the office of the Governor must be accompanied by answerability, transparency and accountability. Governors and their offices must be scrutinised as much as any other public office. The court must lay down guidelines in this regard.