Bird in a Golden Cage- By Choice?

Appoint

Sarojini Naidu the former governor of the present-day state of Uttar Pradesh, on being asked about her position as the Governor had once remarked that it is a like being a ‘bird in a golden cage’. The remarks were in light of the mere ‘titular’ nature of the position as it commonly believed that the Governor of a state is a mere figurehead and has no real powers, as the actual power lies with the Council of Ministers of the state (“State CoM”). However, the political history of India has shown us to the contrary, as there have been situations wherein the independent decision of the Governor has made all the difference and broken stalemates. In fact, the recent happenings in Maharashtra are a testament to the importance of the Governor as crucial decisions like calling a political party to form the government, recommending the President’s rule and the subsequent early morning swearing in were all taken by the Governor himself.

In the present post, I wish to throw light on the position of the Governor in India and bust the myth that the Governor of a state is a constitutional position with only high perquisites and emoluments but no real power. I shall argue that contrary to popular opinion, the Governor has certain key powers and functions which she/he is bound to exercise independently and the reasons why in reality she/he rarely does so.

The post shall begin by first discussing the constitutional provisions governing the Governor i.e. the appointment-removal and the powers and duties. This shall be followed up by a discussion on the discretion of the Governor and whether it can perform certain functions independently i.e. without consulting the State CoM.

A. Constitution and the Governor:

As per Article 153 of the Constitution of India there shall be a Governor for every state, who shall be appointed by the President.

  • Appointment and Removal-

For a person to be appointed as a Governor, she/he must be a citizen of India and at least 35 years of age. The Governor holds the office for a period of five years subject to the pleasure of the President. In other words, the President has the power to remove the Governor before the completion of five years as well.

It should be noted that none of the aforesaid powers of the President regarding the Governor are exercised by her/him independently and are based on the decisions of the Union government i.e. the Council of Ministers of the Union (“Union CoM”). Therefore, the President only acts as a figurehead and signs the orders of the central government.

  • Powers and Functions-

The Governor is vested with several constitutional powers, namely, to grant pardons, commute punishments, make rules for transactions of the government, promulgation of ordinances etc. It should be noted that as per Article 163(1) the functions of the Governor are to be exercised by her/him in aid and advise of the State CoM (an advice binding on her/him), unless the Constitution specifically requires her/him to independently exercise the discretion.

The intent of the Constituent Assembly behind Article 163 was to not provide the Governor with any power and functions at all. The said intent is made clear from the words of Dr. Ambedkar (Chairman of the Drafting Committee) who stated,

“The Governor under the Constitution has no functions which he can discharge by himself; no functions at all. While he has no functions, he has certain duties to perform, and I think the House will do well to bear in mind this distinction. This Article (Article 167) certainly, it should be borne in mind, does not confer upon the Governor the power to overrule the Ministry on any particular matter.” -(Constituent Assembly Debate, vol. VIII at ¶ 520 on 2 June 1949)

In other words, the makers did not want to vest any discretion in the Governor, and she/he was to abide by the decisions of the State CoM. The reason behind such a stance was the nature of the positions, as a Governor was an appointed individual whereas the members of the legislative assembly (who formed part of the State CoM) were directly elected and hence, represented the will of the people in the true sense.

B. Does the Governor have any ‘real’ discretion?

It should be noted that despite the intent of the makers, the language of Article 163 provides for a possibility where the Governor may exercise her/his own discretion in situations wherein the Constitution requires so. In fact, as per Clause 2 of the Article, the question whether a matter requires the Governor to exercise her/his discretion shall be decided by the Governor herself/himself. In other words, if there is any ambiguity on whether the Governor can exercise its power in a situation, she/he shall be the sole Judge on the same.

A Constitution Bench of the Hon’ble Supreme Court of India in the locus classicus of Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly & Ors. (2016) 8 SCC 1 delineated the instances where the Governor can use her/his individual discretion. The Court held:

“125. Under Article 163(1) of the Constitution, the Governor is bound by the advice of his Council of Ministers. There are only three exceptions [“except in so far as”] to this: (i) The Governor may, in the exercise of his functions, act in his discretion as conferred by the Constitution; (ii) The Governor may, in the exercise of his functions, act in his discretion as conferred under the Constitution; and (iii) The Governor may, in the exercise of his functions, act in his individual judgment in instances specified by the Constitution.”

The Court uses three expressions in the above judgment i.e. ‘discretion as conferred by the Constitution’, ‘discretion conferred under the Constitution’ and ‘individual judgment’. The said expressions are explained below.

  • ‘Discretion as conferred by the Constitution’:

The expression is in light with Article 163(2) and includes constitutional provisions which specifically confer discretion on the Governor, namely the special powers concerning the Tribal Areas of Assam, Nagaland, Sikkim and Arunachal Pradesh (Article 371A-371H).

The expression also encompasses situations wherein the Governor exercises her/his discretion by necessary implication i.e. when there is no State CoM to aid and advise her/him or its advice cannot be sought. For instance, in matters of appointment of a Chief Minister after elections or where the State CoM has resigned/dismissed or where the Governor has to make a report to the President recommending President’s rule (in a situation where the government of the state cannot be carried on in accordance with the provisions of the Constitution-Article 356) or where the Governor reserves a Bill for the consideration of the president (Article 200) or where she/he believes that the state government does not enjoy confidence of the house (Article 164).

  • ‘Discretion conferred under the Constitution’

The expression refers to a situation wherein the Governor is vested with discretion by any authority using the provisions of the Constitution. Kindly note that the said discretion would be post the Constitution coming into force. Pertinent examples of such a situation are the orders passed by the President under Article 371 of the Constitution i.e. powers of the President to provide for special responsibilities for the Governor in the states of Maharashtra, Punjab, Andhra Pradesh, Manipur etc.

  • ‘Individual Judgment’

The last category wherein the Governor may exercise its discretion is where she/he is required to act on her/his individual judgment. It should be noted that the said phrase was added to the Constitution by way of an amendment to Article 371 i.e. special responsibilities regarding law and order in Nagaland and Arunachal Pradesh.

It should be noted that in addition to the above categories, several scholars believe that the Governor may refuse to abide by the advice of the State CoM, if the said advice goes against the spirit of the Constitution. Such an opinion is also buttressed by the oath of the Governor, wherein she/he swears to preserve, protect and defend the Constitution. An appropriate example of the same is the case of MP Special Police Establishment v. State of M.P. (2004) 8 SCC 788, wherein the Governor went against the decision of the State CoM and granted sanction to prosecute two Ministers of the state. The Court upheld the Governor’s exercise of discretion as the advice of the State CoM was irrational, arbitrary and biased.

C. Exercise of Individual Discretion: Reality

The position of a Governor is of key importance in India, as in a situation wherein the same political party is not ruling at both the Centre and a state; the Union/Central government relies on the Governor to provide it an advantage in key situations.

A pertinent example here is the situation of appointment of Chief Ministers. As discussed, the decision to call upon a political party to form the government is solely of the Governor since no State CoM is at place then. In most of such cases, unless a political party has a clear-cut majority, the Governor has first called upon the political party which is ruling at the Centre to form the government. The recent happenings in Maharashtra and Karnataka are a testament to that.

Therefore, despite there being situations wherein the Governor is empowered to exercise her/his independent discretion, this power is rarely put to its actual use. More often than not, the independent discretion of the Governor is based on advice of the Central/Union government, which appoints it.

It should not be forgotten that this loyalty to the central government stems from the fact that the Governor holds her/his position at the pleasure of the central/Union government who would want an obedient soldier and not a rebel which is why a change in the central government often results in change/transfers of Governors of states too.

Concluding Remarks:

The status and position of a Governor has never been truly understood or given its due importance, which is why people have casually described it. In addition to Ms. Naidu’s remarks, Mrs. Vijayalakshmi Pandit had famously said that ‘the Governors wife is more useful to the State than a Governor’.

In my opinion, such a misconception exists because the occupants of the Governor’s office usually lack the grit and valour to put their duty towards upholding the Constitution over their allegiance to their appointees. It is not the constitutional position that is powerless but its occupant, who make it so.

Therefore, to conclude, the cage keeping the bird (i.e. the Governor) may be golden, but the bird stays in it at its own will and not because there is no way to escape and utilize the freedom it has.

[Views are personal and are not intended to disrespect any constitutional position in India]

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