Governor the Representative of Centre of State

Governor is the Chief Executive official of the state. The Executive power of the state is vested in him and all executive actions are taken in his name in accordance with the Constitution [2] . Governors of Indian states have been vested with powers and functions at the state level as that of the President at the capital. The powers and functions so conferred include the exercise of certain discretionary powers where the Governor is expected to act on his own judgment. It is the duty of the Governor as the representative of the centre to ensure that the state is being carried on in accordance with the provisions of the Constitution [3] . This follows that if it comes to his notice that the State no longer can be carried on in accordance with the Constitution he may report the same to the President. The President on being satisfied with such report or otherwise may take over the administration of the state by declaring President’s rule [4] . This power of the Centre to take over the State’s administration has been severely criticized. It has been alleged that when the Constitution has declared India to be a federation, the existence of such a provision runs antithetical to the federal principle. The theory of federalism connotes that the states and the federal government are two sovereign entities and that; one sovereign cannot overtake another sovereign [5] .

Criticism has also been leveled that the Union Government utilizes the Governor for its own political ends [6] . Lately, it has also been observed that many Governors came to regard themselves as the agents of ruling party rather than the guardians of federal democracy.

This project tends to analyze the position of Governor as the Constitutional head of the state in the backdrop of federalism. The project analyzes the legal position of Governor with the help of case law. The researcher has placed an exclusive reliance on Article 356 since it has been alleged that the office of Governor has been misused by the Centre by its unwarranted application. This is followed by a reference to those instances where there is a prima facie misuse of this provision. The project concludes on an observation that the theoretical exposition of the position of Governor under the Constitution of India remains to be a utopia.

CHAPTER-1

THE LEGAL POSITION OF GOVERNOR- ANALYZED

SYNOPSIS:

WHETHER THE GOVERNOR ACTS AS AN OBSERVER OF THE UNION?

IS THE OFFICE OF GOVERNOR SUBSERVIENT TO THE UNION?

WHETHER THE POSITION OF GOVERNOR IMPEDED BY THE MANNER OF HIS REMOVAL BY THE CENTRE?

WHETHER THE GOVERNOR ACTS AS AN OBSERVER OF THE UNION?

Governor acts as a defender of the Constitution. He owes an undivided allegiance to the “Constitution and the Law” while undertaking the obligation to devote himself to the service and well being of the people. He is to act as a formal channel of communication between the Union and the State [7] . In doing so, he is vested with certain discretionary powers. One of such independent functions is the making of the report to the Union Government on the basis of which the Presidential power under Article 356(1) of the Constitution could be exercised [8] . Governor while acting in such capacity in the larger interests of people acts as an observer of the Union. He has to keep a watch on the functioning of the administrative machinery and every organ of the State. The Governor should act immediately and report to the Centre when there is a failure of law and order [9] . The report so sent by the Governor must contain facts and circumstances relevant to assess the situation leading to particular satisfaction of the President though it remains unjusticiable. [10] In the absence of such an observation he cannot satisfactorily discharge his function of making the report which forms the basis of Presidential satisfaction under Article 356(1) of the Constitution [11] .

IS THE OFFICE OF GOVERNOR SUBSERVIENT TO THE UNION?

However, the fact that the Governor acts as an observer of the Union does not imply that he is subordinate to it. He is an independent Constitutional functionary whose office is not subservient to the Union of India [12] . He is not accountable to the Union in the mode of performance of his obligations [13] . The office of Governor is not an employment under the Union of India [14] .

WHETHER THE POSITION OF GOVERNOR IMPEDED BY THE MANNER OF HIS REMOVAL BY THE CENTRE?

Article 156 (1) of the Constitution provides that the Governor shall hold office during the pleasure of the President. The displeasure of President is unjusticiable due to which the office of Governor is devoid of any security of term. In other words, the President can at any time remove him from his office unilaterally [15] . In other words, the current position of law permits the Centre to dismiss the Governor without rendering any accountability [16] . This allows for the exercise of arbitrariness by the Centre in the manner of removal of Governor. It has been pointed out by Seervai that Governor would run the chance of being sacked if he acts contrary to the policy of Union Ministry [17] . There is a high probability in such a situation that Governor would follow the advice of Union Ministry. The removal of Governor under such circumstances indicates the effective control that the Union Government may exercise over the States [18] .

As a rectification measure the pleasure of President should be made justiciable so that the sacked Governor can challenge the removal and contend that the Presidential pleasure has been exercised improperly [19] .

CHAPTER-2

EMERGENCY PROVISIONS IN THE BACKDROP OF FEDERALISM

SYNOPSIS:

DOES ARTICLE 356 OF THE CONSTITUTION POSE A THREAT TO FEDERALISM?

HAS THE CENTRE FOLLOWED THE DIRECTIONS CONTEMPLATED IN ARTICLE 356 BEFORE SUSPENDING THE ADMINISTRATION OF STATES?

HAVE THE GOVERNORS OF INDIAN STATES ACTED AS AGENTS OF CENTRE?

WHAT IS THE HISTORICAL BACKDROP BEHIND INCORPORATING THE EMERGENCY PROVISIONS?

DOES ARTICLE 356 OF THE CONSTITUTION POSE A THREAT TO FEDERALISM?

The Rajmannar Committee was appointed in 1969 to go into all aspects of Centre-State relations including the powers of President of suspending State Government under Article 356. Committee observed that Article 356 articulated a system of Central hegemony over the States and was inconsistent with the principles of federalism. It also found that the Union Government is conferred with supervisory powers over the states and that surprisingly, intrudes in the well defined and specified matters in the State list [20] .

Subsequently, the West Bengal Government Memorandum of 1980 provided for the fundamentals of the demand for greater autonomy for States under the present set up of the Constitution which included the curtailment of exercise of powers under Article 356 of the Constitution. In 1983 the Government of India had constituted a Commission later known as the Sarkaria Commission [21] . The Commission in its report pointed out the abuse of power by the Union Ministry and referred to the instances where Governors are made the forced agents of the Centre. The power under Article 356 has been grossly misused by the Centre. The centre has bypassed the principles of Cooperative federalism [22] .

HAS THE CENTRE FOLLOWED THE DIRECTIONS CONTEMPLATED IN ARTICLE 356 BEFORE SUSPENDING THE ADMINISTRATION OF STATES?

The National Commission Report to Review the Working of Constitution analyzed the cases where Article 356 was applied. The analysis revealed that in about thirteen cases the Ministry enjoyed majority in Legislative Assembly when Article 356 was applied [23] . In as many as fifteen cases other claimants were not given a chance to form an alternative Government [24] . In three instances the centre eschewed from forming a care taker ministry despite the finding that no viable Government could be formed and fresh elections were necessary [25] . It is apparent from the above mentioned instances that the Centre eschewed from following the directions envisaged in Article 356 before declaring the President’s rule.

HAVE THE GOVERNORS OF INDIAN STATES ACTED AS AGENTS OF CENTRE?

The use of Governor as an agent of the Centre happened several times over. In 1984, amidst of many controversies the Chief Minister of Andhra Pradesh who created history in the annals of parliamentary democracy by launching a new party, Telugu Dasam Party, backed by a vast majority had been dismissed by Governor. It was alleged that this dismissal followed a political rivalry between the Chief Minister and Mrs. Indira Gandhi, the then Prime Minister of India [26] .

B.P Singh, the Governor of Goa, had gone to the extent of replacing the Chief Minister with another MLA by interpreting the pleasure clause. This was an obvious misuse of the clause. And more recently, the U.P Governor, Moti lal Vora has been accused of acting at the behest of his erstwhile party’s top leadership [27] .

Dr. Chenna Reddy of the Congress Party was the Governor of Uttar Pradesh at the time when the State was undergoing the period of emergency. In his address to the joint sitting of both Houses, he openly appreciated the emergency which was subsequently criticized by him on the change of Government. This instance shows the pathetic and embarrassing position of the Governors of Indian States.

Justice Krishna Iyer calls the usurpation of the State power by the Centre as a sabotage of federalism and a grave frustration of basic structure of the Constitution. He called Governor a pathetic functionary [28] .

WHAT IS THE HISTORICAL BACKDROP BEHIND INCORPORATING THE EMERGENCY PROVISIONS?

The founding fathers of our Constitution recognized the sovereignty of states in their respective field [29] . The incorporation of Article 356 was strongly objected by the members of the Drafting Committee for the reason that it purported to reincarnate the imperial legacy. These arguments were overridden by Dr. Ambedkar on the ground that such articles would be seldom called in operation and would remain dead letter of words. Even if these were called into operation the President would take reasonable precautions before suspending the administration of provinces [30] .

CONCLUSIONS

The academic position of Governors under the Indian Constitution envisages that the office of Governor is not subservient to the Union. He is an independent Constitutional functionary who is to dedicate himself to the well being and service of the people. While doing so, he acts as a defender of the Constitution who ensures that the State is being carried on in accordance with the Constitution. In this way, he acts as a representative of the Union. But this representation can in no sense be equated to an agency under the Union. He acts as a representative of the Centre at the state in that he facilitates the Union to discharge its ultimate responsibility of ensuring that the state administration is being carried on in accordance with the Constitution. This does not imply that he acts as an agent of the Centre as he is not accountable to the Union in the mode of discharging his obligations. However, one cannot overlook the reality that the Governor is no more than a dubious functionary in a pathetic state. The mode of appointment of Governor allows the Centre to have an effective control over the office bearer. The power of President to remove the Governor at his pleasure adds to the plight of the Head of the State. One can observe here, that there is a major inconsistency in the provisions of the Constitution which owes the responsibility for such an embarrassing position of the Governor. This forces one to believe that the achievement of federalism in India remains to be a wishful thought.