Udayan Hazarika
(The writer can be reached at udayanhazarika@hotmail.com)
The country is recently witnessing some unprecedented activism from the part of a few pro-active Governors leading to their bitter relationship with the Chief Ministers of the States concerned. The reason behind this sudden spurt of activism is difficult to assess. They are the Governors posted in the non-BJP ruled States appointed at various times after the NDA Government came to power in 2014. The removal of the UPA-nominated Governors was the first thing that the NDA executed after coming to power. Undoubtedly, the NDA did it hastily despite the fact that there existed a Supreme Court ruling in B.P. Singhal Vs Union of India WP(C) 296/2004 wherein it was accepted that that constitutionally the Governor holds office during the pleasure of the President and therefore the President can remove the Governor at any time without assigning any reason and without giving any opportunity to show cause. However, it was also observed that the power under Article 156(1) cannot be exercised in an arbitrary, capricious or unreasonable manner. "The power will have to be exercised in rare and exceptional circumstances for valid and compelling reasons… What would be compelling reasons would depend upon the facts and circumstances of each case." Now it appears that the newly nominated Governors were not well aware of the status of their offices and the nature of the powers and functions entrusted to this constitutional office.
The powers and functions that the Constitution envisaged to this office of the Governor are well known. In the terminology of political science his position is that of a titular head of the State. The Cambridge dictionary defines the word 'titular' as "a position having the title or a position but not the responsibilities, duties or power in name only" and it is appropriately the same way that the Constitution has designed this position sans a few discretionary powers entrusted to him to be exercised in certain defined circumstances. This is what led governors to rebel. There is scope to believe that recent defiant attitude of the governors is nothing but the expression arising out of their frustration. There are also people who believe that it is actually a concerted effort from the part of the BJP to destabilise the non BJP states through the Governors and frustrate the development agenda of the States.
In West Bengal, the conflict between the Governor Shri Jagdeep Dhankar and that of the West Bengal Government has been continuing since his joining. The conflict between the Governor and the State Government in West Bengal is indeed a common phenomenon and it has been in focus since 1967 when Governor Dharam Veer dismissed the United Front Government from power and to make the thing worse the same party came to power in 1969. But the present tussle between the two constitutional heads of the States has reached an unprecedented height which is derogatory to the democratic spirit of the nation. There have already been several rounds of face-off between the Governor and the State Chief Minister. The Governor even came up in social media and public meetings accusing the TMC government as corrupt and inefficient and concealing of facts. In a recent move, the Governor also wrote a letter to the WB CM advising her not to be vindictive and proceed criminally against her one time colleague-Sri Suvendu Adhikari who recently resigned from TMC to join BJP. The Governor's move of using his good office to favour a common member of a political party in such an out-of-the-way is beyond official decorum. This was done in response to a letter written by Shri Adhikari which again is a paradox as to how the one-time Minister in the Mamta Cabinet knowing very well the constitutional propriety, wrote to the Governor instead of Government and that too in advance expressing his fear of getting trapped under criminal conspiracy. Surprisingly, the same mistake has also been committed by the Ministry of Home Affairs by writing to the Governor of West Bengal asking for a detailed report about the incident occurring during the visit of BJP president & Union Health Minister to the State. There is no such provision within the Constitutional framework of asking for a report on law and order from Governor when State Government is already functioning
Another noticeable example of similar stance can be observed in case of Kerala where despite the approval of the Cabinet, the Kerala Governor refused to summon a special one-day Assembly session to discuss and adopt a resolution on the three contentious agricultural laws. Reacting to the Governor's refusal, the Chief Minister stated "When the Council of Ministers makes a recommendation to summon the session of the Legislature, Governor cannot exercise his discretionary power and turn down the recommendation…" The situation is quite extra ordinary. The opposition Congress also categorically termed the Governor's action as against the democratic values. Constitutionally by virtue of Article 163(1) Governor is not competent to deny such permission. In Nabam Rebia & others vs Deputy Speaker and Ors (Civil Appeal Nos. 6203-6204 of 2016), the apex Court held that summoning, proroguing and dissolving the House under Article 174 are the executive functions of the Governor which "cannot be performed except on the aid and advice of the Council of Ministers so as to avoid a futile operation and subject to the procedure mentioned in the Rules …" of Conduct of business of the Assembly concerned. It is worth noting here that during the Constituent Assembly debates Dr. B. R. Ambedkar categorically stated: "If the Constitution remains in principle the same as we intend that it should be that the Governor should be a purely constitutional Governor, with no power of interference in the administration of the province..."
Behind the above order of the Supreme Court, was the yet another pro-active Governor appointed by the BJP Government i.e. the Governor of Arunachal Pradesh Shri Jyoti Prasad Rajkhuwa. In the year 2015, the Governor on receipt of a complaint against the Speaker of the Assembly, himself issued an order on 9th December 2015 advancing the Assembly session of Arunachal Assembly by about a month so as to enable the Assembly to take action to remove the Speaker as demanded as quickly as possible. This was done without following the due procedure that requires consultation with the Chief Minister of the State or the Speaker Nabam Rebia. Later, Both the Constitutional functionaries moved Gauhati High Court against the order of the Governor dated 9th December and finally had filed an appeal in the Supreme Court. The Apex Court while issuing judgement and order on the Writ Appeal held that "the message of the Governor dated 9.12.2015, directing the manner of conducting proceedings during the 6th session of the Arunachal Pradesh Legislative Assembly, from 16.12.2015 to 18.12.2015, is violative of Article 163 read with Article 175 of the Constitution of India, and as such, is liable to be quashed. The same is accordingly hereby quashed". After this the Governor was removed from his position.
Governor's role in all the above instances appears to be of dubious nature. There are instances of overstepping their jurisdiction. They are bound by the constitutional propriety and by that, they are to maintain a good relation with the State government; the cases presented above are indicative of the fact that such violations of the provisions of Constitution have been frequent and mainly occurring in the non-BJP ruled States. Supreme Court's orders on the powers and functions of a Governor abound. Despite that violations are continuing. In the aforementioned Writ Appeal, the five-judge Constitution Bench categorically stated that Governor has no power of his own. For the executive function he is bound by the aid and advice of the Council of Ministers, for legislative functions he is guided by the Conduct of Business Rules of the Assembly concerned and for the discretionary power he is to follow the Constitution. In this context, the vision of Pandit Jawaharlal Nehru expressed during the Constituent Assembly Debates, in regard to the office of Governor (Volume III Pages 455 and 469) is worth noting : "But on the whole it probably would be desirable to have people from outside - eminent people, sometimes people who have not taken too great a part in politics...he would nevertheless represent before the public someone slightly above the party and thereby, in fact, help that government more than if he was considered as part of the party machine."