Central Hall: Just as the selection criteria for Governor nominated MLCs is rarely followed, so is the selection process for the Governor has never been followed

X: @prashanthamine

Mumbai: Just as the selection criteria for the Governor nominated MLCs in Legislative Council is rarely followed, so is the process of selection of the Governor that has never been followed. The issue has once again come up for heated debate in the wake of the recent Supreme Court judgement of April 11, in the Tamil Nadu government versus the Tamil Nadu Governor (R N Ravi) case. The face-off before the judiciary maligns the office of the Governor.

Supreme Court bench of judges, Justice J.B. Pardiwala and Justice R. Mahadevan judgement in The State of Tamil Nadu – vs – The Governor of Tamil Nadu in matters of pendency of bills before Tamil Nadu Governor. The Court declared Governor R.N. Ravi’s delay in granting assent to 10 bills was erroneous and illegal. It exercised its inherent discretionary powers under Article 142 to grant assent to all the 10 pending bills.

The following timelines were laid out by the Court:

1). If the Governor decides to withhold assent or reserve the Bill for the President—on the aid and advice of the Council of Ministers—such action must be taken within one month.

2). If the Governor withholds assent contrary to the advice of the Council of Ministers, the Bill must be returned to the legislature within three months.

3). If the Governor reserves the Bill for the President, again contrary to advice, this too must be done within three months.

4). If a Bill is re-passed and re-presented by the legislature, the Governor must grant assent within one month.

What needs to be borne in mind, the SC judgement is in a civil writ petition. Ideally in such matters involving Constitutional matters of interpretation, a Constitutional bench headed by the Chief Justice of India should have been constituted.

It must be noted here that currently, a similar case remains pending against the Kerala Governor before a bench led by Justice P.S. Narasimha. The timelines prescribed by the Justice Pardiwala-led bench is bound to have a bearing on the pending matter. In such circumstances when there are more than one cases relating to similar subject matter a larger Constitutional bench ideally should have been constituted.

Article 200 does not confer general discretion to the Governor while withholding any legislation passed by the state legislature beyond a stipulated time frame. What the judgement has done it has now quantified that timeframe. The constitutional provision till now was that the Governor could send back the legislation back to the state legislature for its reconsideration.

However, if the state legislature re-enacted the same legislation with or without carrying out suggested amendments by the Governor, and sent it back to the Governor for his/her approval, then the Governor had to give his assent to the legislation.

Then the question arises as to what should the Governor do in case if the state legislature enacts a law that violates the Constitution, powers of the High Court, is detrimental to the welfare of the people or poses serious threat to state and national security? Should the Governor still withhold the same law re-enacted with or without any amendments even if it is contrary to the provisions?

The Supreme Court in March 2021 had in the matter of legislations passed by Kerala and West Bengal against the Citizenship Amendment Act (CAA) passed by the Centre, had argued that States can pass resolutions against Central laws, but added that they are mere opinions and do not carry the force of law.

With opposition ruled states openly stating that they will not allow the implementation of Central laws like CAA and Waqf Amendment Act, question still remains as to how far such dissent should be allowed.

In the Tamil Nadu case, the crux of the matter was, or the bone of contention was over the DMK government’s move to take away the powers of the Governor in matters of appointments of Vice Chancellors of the state universities.

A similar stand-off was witnessed between former Kerala Governor Arif Mohammad Khan and LDF Chief Minister Pinarayi Vijayan (CPI-M) as some Vice Chancellors of state universities refused to obey his orders and resign.

As per constitutional provisions and law, the Governor is also the Chancellor of state universities and is the custodian of matters related to higher education. The Tamil Nadu law effectively takes away all those powers away from the Governor and entrusts it with the Chief Minister. That does not do away with the allegation of nepotism in such appointments.

Amidst the face-off and calls for doing away with the office of the Governor itself, hardly anyone has bothered to take a look at the Justice Ranjit Singh Sarkaria Commission recommendations on the issue.

Set up in 1983 by then late Prime Minister Indira Gandhi to look into various aspects of Centre-State relations, had submitted 21 voluminous reports in 1988. The Sarkaria panel in two volumes – IV and V has extensively dealt with the “Role of the Governor” and “Reservation of Bills by Governors…”

The Sarkaria Commission in its report has observed “discarded and disgruntled politicians from the party in power in the Union, who cannot be accommodated elsewhere, get appointed as Governors. Such persons, while in office, tend to function as agents of the Union Government rather than as impartial constitutional functionaries. The number of Governors who have displayed the qualities of ability, integrity, impartiality and statesmanship has been on the declining side.”

In one case the panel noted that once a Minister in a state government was forced to resign following his conviction on charges of corruption, the same politician was posted as the Governor of a state.

The Sarkaria panel had in 1988 recommend that a person to be appointed as a Governor should satisfy the following criteria:

1). He should be eminent in some walk of life.

2). He should be a person from outside the State.

3). He should be a detached figure and not too intimately connected with the local politics of the State; and

4). He should be a person who has not taken too great a part in politics generally and particularly in the recent past.

In selecting a Governor in accordance with the above criteria, persons belonging to the minority groups should continue to be given a chance as hitherto, added the Sarkaria panel in its report.

In respect to the appointment of the Governor, the Sarkaria Commission has made some suggestions made in the matter involving the State Government:

1). from a panel to be prepared by the State Legislature; or

2). from a panel to be prepared by the State Government (in effect the State Chief Minister) or invariably with the concurrence of the State Chief Minister; or

3). invariably in consultation with the State Chief Minister.

4). A National Presidential Council should be set up to advise the President on matters of national interest, inter alia, for selection of persons to be appointed as Governors. This Council would be analogous to the Council of State originally proposed at the time of framing of the Constitution. It would be composed of the Prime Minister, Presiding Officers and the Leaders of the Opposition in the two Houses of Parliament, former Presidents, Prime Ministers and Chief Justices of India, the Attorney-General for India, and a certain number of nominees of the President.

5). Appointment should be made by the President on the advice of the Inter-Governmental Council. One of the State Governments has further suggested that the Council should maintain a panel of names suitable for appointment as Governors. The Chief Minister of the State where the office of Governor is to be filled should choose three persons from the panel and the Inter-State Council should select one of them for appointment. The advice of the Inter-State Council should be accepted by the Union Executive.

6). Leaders of the opposition parties in Parliament should be consulted.

Amidst the calls for doing away with the post of the Governor in the state, Justice Ranjit Singh Sarkaria in his report terms the post of the Governor as the “Linchpin of the Constitutional apparatus” in the state. The office of the Governor assures continuity in Government, even when there is no government in place just after the elections are held or the President’s Rule has been imposed.

The Sarkaria panel also bats for a fixed tenure of office for the Governor and a better remuneration post-retirement. The report also calls the office of the Governor as “Indispensable”, especially at times when the President’s Rule has been imposed. Justice Sarkaria adds that the Governor acts like a “vital link” between the Union Government and the State Government.

The situation is no different when it comes to filling up vacancies in Legislative Council and Rajya Sabha by way of Nomination from the office of the Governor in the case of Legislative Council, and by the President of India in respect of similar vacancies in the Rajya Sabha.

The provision dates back to the British era and is still continued. The idea behind creating such vacancies was to ensure that prominent/eminent personalities from legal, medical, engineering, research, fine arts and social work who otherwise cannot compete in Assembly or Lok Sabha elections, but whose insights and knowledge can offer help to the government in formulating policies, laws or taking decisions in such matters.

However, in this case also the appointees to these vacancies have been politicians who have lost Assembly, Council, Lok Sabha or Rajya Sabha elections and need to be politically rehabilitated by bringing them to the elected house through the backdoor.

With a matter pending against the Kerala Governor similar to that of Tamil Nadu Governor before the bench of Justice P.S. Narasimha, incumbent Kerala Governor Rajendra Arlekar has raised some questions, “if constitutional amendments are brought in by the Apex Court, what are Parliament and Legislatures for.”

Reacting to the media, Arlekar termed the Supreme Court verdict as “judicial overreaction” and said that the matter should have been referred to a larger bench. The Kerala Governor further remarked “the Constitution has not put any time limit for the Governor to give assent to the bill. But, if the SC today says there has to be a time limit, be it one or three months, it becomes a Constitutional Amendment.”

He further adds, “It is the right of the Parliament to make amendments. You need to have a two-thirds majority in favour of the amendment. And two judges sitting there decide the fate of the constitutional provisions. I don’t understand this. The constitutional amendment is a prerogative of the Parliament. They could have suggested there needs to be a time limit.”

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Commenting upon the case pertaining to the Kerala Governor’s office before the SC, Governor Arlekar clarified that the Kerala matter is different from that of the Tamil Nadu matter, He clarified that there are no bills pending before him for his assent. He also further added, “SCs observation that Governor’s cannot keep bills pending for a longer period is understandable. But the Governor should do it within a certain time period is not something implied within the Constitution.”

The opposition ruled states of Tamil Nadu, Kerala, Telangana and Punjab have already openly voiced their dissent against their respective Governor’s over their alleged “interference” in their governance. The Pinarayi Vijayan led LDF cabinet recently staged a protest at Jantar Mantar in New Delhi on the same issue.

Of late, in the recent past the Centre-State relations have in some cases of opposition ruled states have come increasingly under severe strain. Since 2015, eight states have withdrawn their General Consent granted to the Central Bureau of Investigation (CBI) under section 6 of the Delhi Special Police Establishment Act (DSPE) 1946.

The 8 state’s include – Mizoram 17-07-2015, West Bengal 16-11-2018, Chhattisgarh 10-01-2019, Rajasthan 19-07-2020, Maharashtra 21-10-2020, Kerala 04-11-2020, Jharkhand 05-11-2020 and Punjab 06-11-2020.

Most of these states were at that point in time ruled by, or are being ruled by opposition parties since the BJP came to power at the Centre in 2014. Of them Maharashtra has restored the General Consent granted under DSPE to the CBI.  

List of Governors and their Controversies:

1). Arif Mohammad Khan – ex-Governor of Kerala – had his fair-share of differences with LDF Chief Minister Pinarayi Vijayan (CPI-M). Vice Chancellors of Universities refused to obey his orders and resign. He was also known for his vocal support of the Citizenship Amendment Act (CAA) passed by the Centre.

2). R N Ravi – Governor of Tamil Nadu – withheld 19 bills passed by DMK Chief Minister M K Stalin government. He skipped parts of the Governor’s address to the Tamil Nadu legislative assembly. Article 163(2) of the Constitution allows Governors to voice dissent notes outside the legislative assembly on rare occasions. After the recent SC verdict, Stalin announced the deemed assent to 10 of the Acts.

3). C V Ananda Bose – Governor of West Bengal – is reported to be on good terms with West Bengal Chief Minister Mamata Banerjee much to the annoyance of the BJP.

4). Vice President of India Jagdeep Dhankar – ex-Governor of West Bengal. The former Governor had less than cordial relations with the Trinamool Congress (TMC) government in 2019. In July 2019 he had a stand-off with student protestors at the Jadhavpur University.

5). Bhagat Singh Koshiyari – ex-Governor of Maharashtra – had very stormy relations with the former chief minister Uddhav Thackeray led Maha Vikas Aghadi (MVA) government. He was once prevented from using the state official aircraft and deplaned. His move to administer the oath of office to Devendra Fadnavis as the chief minister and Ajit Pawar as the deputy chief minister at 5.47 am in 2019. His role during the toppling of the MVA government in 2022 was also criticised.

6). Banwarilal Purohit – Governor of Punjab has been at loggerheads with AAP Chief Minister Bhagwant Mann criticising the Governor for being slow in clearing bills and unanswered letters.

7). Chakravarti Rajagopalachari @ C Rajagopalachari, @ C R or @ Rajaji was the first Governor of West Bengal, post-Independence (1947-48). Wanted the government to abolish the Zamindari system.

8). V V Giri – The former Vice President and later President of India was also the former Governor of Uttar Pradesh and Kerala. He contested the election to the President of India post as an Independent and won with the support of then Prime Minister Indira Gandhi.

9). Bhagwat Dayal Sharma, B D Sharma or better known as Panditji – ex-Governor of Odisha. In 1977 he sided with the Syndicate in the Congress during the party split. He then was transferred to Madhya Pradesh as the Governor.

10). Romesh Bhandari – former Governor of Uttar Pradesh, West Bengal and Goa. He was accused of manipulating government alliances and was known more for toppling elected state governments.

In 1988, in the midst of the Lok Sabha election, BJPs Kalyan Singh government in Uttar Pradesh wobbled as 22 MLAs of Jagdambika Pal led Loktantrik Congress withdrew its support to the Kalyan Singh government. Bhandari dismissed the Kalyan Singh government and asked Jagdambika Pal to form the government. Kalyan Singh fought the legal battle in which he was reinstated as the chief minister and went on to win the trust vote.

11). Kesari Nath Tripathi – ex-Governor of West Bengal. He preceded Jagdeep Dhankar and was critical of the government over incidents of violence and vandalism in the state.

12). Kiran Bedi – ex-Lieutenant Governor of Puducherry. Former Congress Chief Minister V Narayanswamy wrote a letter to President of India Ram Nath Kovind urging him to reign-in what he called “autocratic” LG.

13). Satya Pal Malik – ex-Governor of Jammu and Kashmir. His actions came under criticism when opposition parties wanted to form a government in the state. He refused appointment giving a lame excuse that the Fax machine at the Raj Bhavan was not working. He later had serious differences with the BJP government in Centre.

14). Tathagata Roy – Governor of Meghalaya. He was accused of behaving more like a member of the Bharatiya Janata Party (BJP).

15). V Shanmugananthan – ex-Governor of Meghalaya was forced to resign amidst charges of sexual harassment.

16). Narayan Datt Tiwari @ N D Tiwari – ex-Governor of Andhra Pradesh (2007-2009). He was implicated in a sex scandal, sexually abusing girls, blackmailing women. He publicly apologised, but later alleged that he was being “framed”.

17). Ram Naik – ex-Governor of Uttar Pradesh – did not get along well with the Samajwadi Party government. After Yogi Adityanath took over as the Chief Minister, Naik assumed the role of the mentor for BJP MLAs

18). Kalraj Mishra – ex-Governor of Rajasthan – twice returned Chief Minister Ashok Gehlot’s recommendation to convene a special session of the state legislative assembly after sacking deputy chief minister Sachin Pilot.

19). Ram Lal – ex-Governor of Andhra Pradesh – in August-September of 1984 invited Nadendla Bhaskara Rao for swearing-in as the chief minister, while incumbent TDP Chief Minister NT Rama Rao was abroad for heart-surgery.

20). Homi Taleyarkhan – ex-Governor of Sikkim – dismissal of Nar Bahadur Bhandari government in 1984 had sparked-off a controversy.

21). P Venkatasubbaiah – ex-Governor of Karnataka in 1988 sacked the S R Bommai government during the tenure of late Prime Minister Rajiv Gandhi. MLA K R Molokery claimed support of 18 MLAs. Bommai was not given a chance to prove his majority. Bommai moved the Supreme Court which later in 1994 delivered the landmark Bommai judgement.

22). K P Singh – ex-Governor of Gujarat – recommended imposition of President’s Rule, during the tenure of United Front government of Prime Minister H D Deve Gowda. The Suresh Mehta led BJP government was plunged into crisis as Shankarsingh Vaghela claimed support of 40 MLAs amidst reports of bloody clashes between the two factions. Mehta survived the trust vote.

23). Buta Singh – ex-Governor of Bihar – the 2005 assembly election threw up a hung verdict. Despite the BJP and JD-U led NDA claiming support of 115 MLAs and support of some LJP MLAs, Buta Singh dissolved the assembly over fears of horse-trading. The union cabinet met at midnight to recommend imposition of President’s Rule. Then President of India, Dr A P J Abdul Kalam who was in Moscow at that time was woken up and the Bihar assembly was dissolved. Later the Supreme Court came down heavily on Buta Singh who subsequently resigned.

24). Syed Sibtey Razi – ex-Governor of Jharkhand – it was during the tenure of Prime Minister Dr Manmohan Singh, the 2005 assembly elections in Jharkhand threw up a hung verdict. Razi over-ruled BJP led NDAs claim of majority and invited Jharkhand Mukti Morcha (JMM) Shibu Soren to be sworn-in as the chief minister. Soren had to resign and did not face the trust vote. BJPs Arjun Munda was later sworn-in as the chief minister.

25). K K Paul – ex-Governor of Uttarakhand – it was in 2016, 9 Congress MLAs supporting the Harish Rawat government defected and joined the BJP. Governor Paul asked Rawat to prove his majority on March 28. However, before the trust vote, the Assembly Speaker dismissed the 9 Congress rebels. The Centre (BJP) imposed President’s Rule. Rawat moved the High Court which set aside the imposition of the President’s Rule. Rawat proved his majority and the government survived.

26). Mridula Sinha – ex-Governor of Goa – the 2017 assembly election gave a hung house. The Congress was the single largest party with 17 MLAs and BJP had 13 MLAs. Yet Sinha invited Manohar Parrikar to form the government.

27). Najma Heptullah – ex-Governor of Manipur – Congress was the single largest party with 28 MLAs in a 60 member house. However, Heptullah invited BJP to form the government after it submitted its list of supporting MLAs.

28). Vajubhai Vala – ex-Governor of Karnataka – in 2018 assembly elections the BJP fell short of the majority in the 224 member house by 8. The Congress-JD-S arrived at a post-poll alliance and claimed a majority. However, Vala invited BJP to prove its majority in 15 days. The Congress moved the Supreme Court which reduced the time limit to 9 days for B S Yediyurappa to prove his majority. Yediyurappa resigned without proving the majority.