Governors and Founding Fathers

This hope has been sadly belied. The Sarkaria Commission found that consultation with chief ministers was not taking place. The painful fact is that, in many cases, governors are foisted upon the states. Apart from some honourable exceptions, persons who do not remotely fulfil the expected criteria have been appointed as governors, some of whom have indulged in political partisanship whilst holding the high office. Every government has had its share of transgression in varying degree.

What was the Founding Fathers’ conception of the position and role of a governor? Krishnamachari unequivocally stated in the Constituent Assembly that “we do not want … to make the governor of a province an agent of the Centre at all”. In May 1979, a Constitution Bench of the Supreme Court categorically ruled in Hargovind vs Raghukul Tilak that the governor cannot be “regarded as an employee of the Government of India…He is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carries out his functions and duties. His is an independent constitutional office which is not subject to the control of the Government of India”.

High constitutional office holders, like the president, and judges of the Supreme Court and High Courts, can be removed under our Constitution only on the ground of proven misbehaviour or incapacity. The same position obtains in the case of the chairman or any other member of the Public Service Commission. Any member of a civil service of the Union or a state, however low in the hierarchy, cannot be removed without being accorded a reasonable opportunity of being heard. Yet, the manner in which the Constitution has been worked, it would appear that the head of a state — the governor — has no security of tenure nor any safeguard against his or her removal.

Did the Founding Fathers of the Constitution contemplate such a bizarre situation? Professor K.T. Shah, in the course of the debates, stressed that “we must not leave the governor to be entirely at the mercy or pleasure of the president and so long as he acts in accordance with the advice of the constitutional advisers of the province he should, I think, be irremovable during his term of office”. Shibbanlal Saksena apprehended that in the absence of safeguards “he (the governor) will be purely a creature of the president, that is to say, the prime minister and the party in power at the Centre. When once a governor has been appointed, I do not see why he should not continue in office for his full term of five years and why you should make him removable by the president at his whim…Such a governor will have no independence…”

B.R. Ambedkar’s answer to these criticisms is highly significant. He emphasised that it was “quite unnecessary to burden the Constitution with all these limitations stated in express terms…I therefore think that it is unnecessary to categorise the conditions under which the president may undertake the removal of the governor”. Thus Dr Ambedkar clearly visualised that the power of removal of a governor was conditional, not absolute.

The power of removal, although apparently absolute, is subject to an implied limitation, namely, that it can be exercised only in cases of violation of the Constitution or for the commission or omission of acts by the governor which render him or her unfit to occupy the gubernatorial office. The doctrine of implied limitation has been recognised by our Supreme Court.

Consequently, the pleasure of the president — which has to be exercised in keeping with ministerial advice — cannot be equated with that of Henry the VIII, the much married monarch, who cast away his wives at his own whim and fancy. Exercise of any power, be it under the Constitution or under a statute, must be informed by reason and based on rational grounds. It cannot be arbitrary or capricious. It must be preceded by a fair and meaningful opportunity of an explanation being given to the party affected by the decision. Above all, any action which is mala fide, or actuated by extraneous considerations, should be struck down.

In these matters, forensic battles and stalling of parliamentary proceedings are not the ultimate solution. The need of the hour is to evolve healthy conventions as envisaged by our Founding Fathers with regard to the appointment and removal of governors and thus ensure smooth functioning of our parliamentary democracy.

The writer is a former attorney general for India