The constitutional debates on the role of the Governor 

(MainsGS2:Separation of powers between various organs dispute redressal mechanisms and institutions.)

Context:

• Recently the office of Governor is in frequent news due to the conduct of the Governors of some States which according to experts, undermine constitutional provisions, constitutional morality, and constitutional ethos.

Some recent controversies :

• Recently, the Tamil Nadu Legislative Assembly adopted a resolution urging the Union Government and President Droupadi Murmu to issue appropriate instructions to Governor R.N. Ravi, to give his assent to Bills passed by the Assembly, within a specific period.
• In January this year, the Tamil Nadu Assembly had moved a resolution disapproving of the Governor’s selective deviation from the prepared text of his customary address to the House.
• Recently the office of the Kerala Governor evoked nationwide attention for his remark“... the statements of individual Ministers that lower the dignity of the office of the Governor can invite action including withdrawal of pleasure”.
• The Supreme Court on Wednesday said that Governors seriously undermine democracy if they use their constitutional office to call for a trust vote.
• The court referred to then-Maharashtra Governor Bhagat Singh Koshyari's call for a trust vote on the floor of the House, which eventually led to the fall of the Uddhav Thackeray government in 2022.
• The Telangana government filed a petition seeking a direction to the Governor, Dr. Tamilisai Soundararajan, to grant assent to Bills passed by the State Assembly. 
• Recently, the apex court disposed of a petition from the Punjab Government that was aggrieved by an alleged delay in the Governor summoning the Assembly. 
• The matter was resolved when it was submitted on behalf of the Governor that the Assembly would meet on the day desired by the State government.
• The court said the Governor as a constitutional authority appointed by the President has a duty to “guide and counsel” the government. 
• However, the Governor is bound by the aid and advice of the Cabinet and cannot employ his discretion against Cabinet advice to convene the Assembly for the Budget Session.

Provision for Governor:

• Article 153 provides a Governor for each State, and by virtue of Article 154, the executive power of the State shall be vested in the Governor (“Shall be exercised by him directly or through officers subordinate to him in accordance with this Constitution”).
• However, Article 154(2)(a) prohibits the Governor from exercising any function “conferred by existing law on any other Authority”.
• Article 163 categorically provides that “there shall be a council of ministers with the Chief Minister at the head to 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.

Supreme court’s view:

• The Supreme Court, in Shamsher Singh vs State of Punjab and Anr., stated that the Governor exercises “all his powers and functions” by making rules for the convenient transactions of the business of the government of the State in accordance with Article 166 of the Constitution.
• The Court however amplified that “wherever the constitution requires satisfaction of the President or the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and 360.
• The satisfaction required by the Constitution is the satisfaction of the President or of the Governor in the Constitutional sense under the Cabinet system of the Government”.
• The Apex Court must be credited for having drawn the lakshman rekha on gubernatorial over-reach through a catena of clear decisions ranging from the landmark S. R. Bommai (1994) , Rameshwar Prasad (Bihar Assembly Dissolution Case of 2006) and Nabam Rebia (Arunachal Assembly Case of 2016) by which the possibility of gross high handedness is either eliminated or reduced to the time taken for judicial review. 

Court on discretion:

• The Court in same case went on to hold that “the discretion conferred on the Governor means that as the Constitutional or the formal head of the State, the power is vested in him” and that it is only in the exercise of the power under Article 356 that the Governor will be justified in exercising his discretion even against the aid and advice of his council of ministers as per his discretionary power.
• But in all other matters where the Governor acts in his discretion, he will act in harmony with his Council of Ministers.
• The Constitution does not aim at providing a parallel administration....” The basic philosophy is that in a democracy, the elected Ministers must accept responsibility for every executive act and that the Council of Ministers alone represents a responsible form of government in the States.

Origin of the office:

• Since 1858, when India was administered by the British Crown, provincial Governors were agents of the Crown, functioning under the supervision of the Governor-General.
• Over the following decades, the Indian nationalist movement sought various reforms from British rule, aiming for better governance.
• These efforts culminated in the Government of India Act, 1935, which came into force in 1937, bringing provincial autonomy. 
• With the 1935 law, the Governor was now to act in accordance with the advice of Ministers of a province’s legislature, but retained special responsibilities and discretionary power.
• Upon Independence, when the Provisional Constitution of 1947 was adapted from the 1935 Act, the post of Governor was retained but the phrases ‘in his discretion, ‘acting in his discretion, and ‘exercising his individual judgement’, were omitted.

Conclusion:

• In words of Justice V.R. Krishna Iyer in Shamsher Singh judgement - “The omnipotence of the President and of the Governor at State level is…. with the obvious intent that even where express conferment of power or functions is written into the Articles, such business has to be disposed of decisively by the Ministry answerable to the Legislature and, through it, vicariously to the people, thus vindicating our democracy instead of surrendering it to a single summit soul, whose deification is incompatible with the basics of our political architecture”