Editorial Notes

[Editorial Notes] Debate on Appointment of Governor

The recent nomination of Governors calls for a review of the gubernatorial (Relating to a state governor) appointments process.
By IASToppers
September 18, 2019

Contents

  • Why it was in News?
  • IT’s Input
  • Constituent Assembly debates on the appointment of Governor
  • Removal of Governors: What does the law say?
  • P. Singhal v. Union of India (2010)
  • Conclusion
  • Way ahead

Debate on Appointment of Governor

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Why it was in News?

President of India

Recently, the president appointed five Governors for various states. However, President nominated the persons as governors who are heavily associated with the current ruling party. This place the entire foundation of Constitution in an extremely precarious position and calls for a review of the process of governor’s appointments.

IT’s Input

About office of the Governor

  • Governor is the nominal head of a state, unlike the Chief Minister who is the real head of a state in India.
  • According to an amendment in the Constitution of India (7th Constitutional Amendment Act), brought about in 1956, the same person can be the Governor of two or more states.

Appointment

  • The Governor is appointed by the President and holds his office at the pleasure of the President in accordance with the Article 156.
  • The normal term of office is five years but may be terminated earlier by (i) dismissal by the President or (ii) resignation addressed to the President. Thus, the term is subject to pleasure of the president.

Constituent Assembly debates on the appointment of Governor:

  • The Constituent Assembly debates on this issue reveal divergent views and considerable deliberation.
  • The President has appointed a person as Governor “by warrant under his hand and seal”. 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, then 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.

Removal of Governors: What does the law say?

  • A decision to remove a Governor can be challenged in a court of law.In such cases, first the petitioner will have to make a prima facie case of arbitrariness or bad faith on part of the central government.
  • If a prima facie case is established, the court can require the central government to produce the materials on the basis of which the decision was made in order to verify the presence of compelling reasons.
  • Elucidating the specific functions of the Governor, the Supreme Court 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”.
  • The Sarkaria Commission (1988) recommended that Article 356 should be used in very rare cases when it becomes unavoidable to restore the breakdown of constitutional machinery in the State. The commission recommended that before taking action under Article 356, a warning should be issued to the state government that it is not functioning according to the constitution.
  • The Venkatachaliah Commission (2002) similarly recommended that Article 356 must be used sparingly and only as a remedy of the last resort after exhausting all actions under Articles 256, 257 and 355.
  • The Punchhi Commission (2010) recommended that these Articles 355 & 356 be amended. It sought to protect the interests of the States by trying to curb their misuse by the Centre.

B.P. Singhal v. Union of India (2010)

SupremeCourtofIndia-IASToppers

  • 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 i) as the constitutional head of the State government and ii) as a vital link between the State and Union governments.
  • The Supreme Court also 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 where the views of the Union Government and State Governments are in conflict.

Conclusion

  • Some, including Jawaharlal Nehru, was in favor of appointment mechanism for governor as appointment by president would place the Governor above party politics.
  • However, the Sarkaria Commission and the National Commission to Review the Working of the Constitution said that the Governor appointee should not have taken too much part in politics.
  • Unfortunately, the President has overlooked this important recommendation which is critical to the existence of a federal and constitutional democracy.

Way ahead:

  • The role of governor is indispensable for the successful working of the constitutional democracy. He must refrain from aligning himself to any political ideology. The virtue of impartiality must be withheld to ensure a free and fair election in a democracy
  • The ‘procedure for appointment of governors should be clearly laid down’ and conditions of appointment must also be laid down and must assure a fixed tenure for the governor so that the governor is not under the constant threat of removal by the central government.

 

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