Recurring controversy about Governor’s role in state

In News

• Kerala Governor and the State government have major differences over multiple issues. 

About 

• The role, powers, and discretion of the Governor’s Office in multiple States have been the subject of constitutional, political, and legal debate for decades.

Recent Controversy 

• The latest controversy has arisen after the Kerala Governor sought the resignation of several vice-chancellors following a Supreme Court judgement setting aside the appointment of the Vice-Chancellor of a technology university.

• The office of the Governor stated that the statements of individual Ministers that lower the dignity of the office of the Governor can invite action including withdrawal of pleasure”. 
  • The Office of  Governor did not explicitly say that such Ministers would be expelled but  going by the text of Article 164(1) of the Constitution — the “Ministers shall hold office during the pleasure of the Governor” — the indication was clear. 

Political and Constitutional facets

• The Governor’s move for ousting Vice-Chancellors of universities in the State, alleging deficits in their appointment process, is purported to be in exercise of his statutory power as Chancellor. 
  • As against the Ministers, he has no such special power. He can only act within the bounds of the Constitution.
• The function of the appointed Governor is always subject to the policies of the elected government, and not vice-versa. 
  • This is a foundational theory of India’s constitutional democracy. Constitutional provisions cannot be read in isolation.
    • Article 163(1) says that the Council of Ministers must aid and advise the Governor. 
    • However, according to Article 163(2), the Governor can act in his discretion in certain matters as permitted by the Constitution.
      •  This would mean that the Governor is generally bound by the Cabinet decision except when he has a legitimate right to invoke his discretion

• Article 164, which contains the provision relevant in the context of the Kerala Governor’s tweet and letter is inseparable from Article 163.

• Therefore, it follows that unless the Cabinet or the Chief Minister advises the expulsion of a Minister, the Governor cannot cause the exit of a particular Minister by “withdrawing pleasure”.

Courts Interpretation 

• The jurist H.M. Seervai gave an explanation about the spirit of Article 163, which, in a way, is a prologue to Article 164(1) dealing with “pleasure”. 
  • He said, “if Governors have discretion in all matters under Article 163(1), it would be unnecessary to confer on Governors an express power to act in their discretion in a few specified matters (by way of Article 163(2))” ( Constitutional Law of India.
• In another judgement, Shamsher Singh vs State of Punjab (1974), the Supreme Court said that the President and Governor shall “exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations”.

Views  of various commission 

• Multiple commissions appointed by the Central government to review and reform Centre-State relations and encourage cooperative federalism have spoken about the role of the Governor as well, with their reports relying extensively on Supreme Court judgements.
  • The Sarkaria Commission, headed by Justice R. S. Sarkaria, said in its 1988 report that it would not be desirable to appoint a Governor who is a member of the ruling party at the Centre, in a State where an Opposition party is governing. 
    • It said that the Governor appointee should be a detached outsider and a person of eminence in some walks of life.
  • In 2007, the M.M Punchhi Commission report stated that Governors were expected to be independent, and to act in a manner devoid of any political consideration.
    • It pointed out that independence of such actions would include keeping the State Legislature and the political executive shielded from the political will of the Union Government.

Way Ahead 

• At a time when regional political forces are actively seeking to be heard by the Centre, it may be time that the provisions relating to the Governor’s role are amended.
•  Identifying areas of discretion, fixing a time-frame for them to act, and making it explicit that they are obliged to go by Cabinet advice on dealing with Bills can be considered.
• In addition, as suggested by the M.M. Punchhi Commission, ending the practice of burdening Governors with the office of Chancellor in universities should also be considered.