Governor As The Agent Of The Centre - Constitutional Or Political Bias
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Category: Constitutional & Human Rights
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GOVERNOR AS THE AGENT OF THE CENTRE:
CONSTITUTIONAL OR POLITICAL BIAS?
Aryan Yadav, Gujarat National Law University
ABSTRACT
The role of the Governor in the Indian constitutional framework has long been a focal point of scholarly and political scrutiny, primarily due to the discretionary powers vested in the office and their application in politically sensitive situations. Although the Constitution envisages the Governor as a neutral and apolitical constitutional authority, there is a growing perception that the office has been increasingly politicized and functions as an agent of the Centre, raising concerns about federal imbalance and democratic accountability. This is particularly evident during episodes of government formation, the dismissal of elected governments, and the recommendation for the imposition of President’s Rule under Article 356. The 2019 Maharashtra political crisis, culminating in the Subhash Desai v.
Principal Secretary case, brought renewed attention to the alleged misuse of gubernatorial discretion, highlighting the tension between constitutional mandate and political expediency. Through a critical analysis of constitutional provisions, judicial pronouncements, and key commission reports—including the Sarkaria Commission, Punchhi Commission, and the
2005 Administrative Reforms Commission—this research examines
whether the Governor’s actions are rooted in constitutional fidelity or driven by political bias. It further assesses the adequacy of judicial safeguards in curbing such misuse and evaluates the implementation and effectiveness of the various recommendations aimed at reforming the gubernatorial role. By doing so, the study seeks to contribute to the broader discourse on Centre-State relations, constitutional morality, and the need for institutional reforms to ensure that the Governor’s office remains an impartial instrument of governance rather than a tool of political manoeuvring.
Introduction
The Governor holds a very important role in India’s political and administrative framework, serving as the constitutional head of a state. Ideally, the Governor must act as a unbiased bridge between the central and state governments, ensuring smooth governance. However, there have been frequent allegations of Governors siding with the party that is ruling at the Centre instead of maintaining their constitutional impartiality. This has sparked ongoing debates about whether the Governor truly operates as an independent authority or merely serves as an extension of central government’s influence. The Governor’s role comes under intense scrutiny, especially during politically charged moments like government formation, assembly dissolutions, or the implementation of President’s Rule under Art. 356 of the Indian Constitution.
These situations often amplify the debate over whether the Governor is acting impartially or being influenced by political interests. The discretionary powers granted to the Governor often place them in the midst of political disputes, as seen in cases like S. R. Bommai v. Union of India (1994), which emphasized the limits of these powers and underscored the role of judicial review in preventing their misuse. 1Another example is the Subhash Desai v. Principal Secretary(2020) case, where the Maharashtra Governor’s actions in government formation were scrutinized for potential bias. 2 To address these recurring issues, multiple commissions, including the Sarkaria Commission (1988)3 and Punchhi Commission (2010)4, recommended reforms aimed at ensuring the neutrality of the Governor.
However, many of these recommendations remain unimplemented, leading to repeated conflicts and allegations of political favoritism. This paper examines the constitutional framework governing the Governor’s role, the judicial safeguards in place, and the extent to which past commission recommendations have addressed concerns regarding bias and misuse of discretionary powers. By exploring key legal provisions, case law, and commission reports, this study aims to determine whether the Governor truly functions as a constitutional authority upholding democratic value or if political considerations continue to influence their decisions. Understanding the practical implications of the Governor's role is crucial in assessing the need for further reforms and ensuring that this office remains a protector of constitutional governance rather than a political tool.
Provisions under the Indian Constitution Governing the Governor’s Role The Indian Constitution defines the Governor’s powers and responsibilities under various provisions. The most significant among them are Articles 153, 154 ,155, 156, 159, 160, 163,
164 and 356. These articles outline the appointment, powers, and discretionary authority of the
Governor. • Article 153 of Indian Constitution lays down the provision for appointing a Governor for each state. However, it also allows a same Governor to serve as the Governor of multiple states if needed. 5 This flexibility enables the central government to appoint a single individual for more than one state, a practice that carries both administrative and political consequences. • Article 154 of the Indian Constitution grants the Governor the executive power of the state, allowing them to exercise it either directly or through subordinate officials. However, this authority is not absolute and must be exercised within the framework of the Constitution. 6 The Governor is merely a titular head, with actual executive authority resting with the Council of Ministers. • Article 155: The Governor is appointed by the President of India through a warrant under “his hand and seal”.
This signifies that the Governor holds office as a representative of the President and functions within the constitutional framework laid down for the position. 7 This provision signifies that the Governor is a nominee of the central government rather than an elected representative of the state. • Article 156: Provides that the Governor shall hold office during the pleasure of the President. However, the term of office is fixed at five years. 8 This creates a scenario where the central government effectively controls the tenure of Governors, leading to concerns about political interference. • Article 159: Requires the Governor to take an oath of office to “preserve, protect, and defend the Constitution and the law. ”9 This reinforces the Governor’s role as a constitutional functionary rather than a political agent.
• Article 160: The President of India has the authority to make provisions for the discharge of the Governor’s functions in situations where the Constitution does not explicitly provide a solution. This ensures continuity in governance during unforeseen contingencies. 10 This allows for flexibility in unforeseen situations but also raises concerns about excessive centralization of power.
Article 163: The Governor is generally expected to act based on the aid and advice of the Council of Ministers. However, in certain situations where the Constitution explicitly provides discretionary powers, the Governor can act independently, ensuring that their decisions align with constitutional principles. This provision ensures that the Governor functions within the democratic framework while retaining limited independent authority in specific situations. 11 This article has been at the centre of debates, particularly concerning the extent of the Governor’s discretionary power in matters such as government formation and dismissal. • Article 164: The Governor is responsible for appointing the Chief Minister, while all other ministers are to be appointed based on the Chief Minister’s advice.
This ensures that the state’s executive leadership is formed in accordance with the democratic mandate. 12 This article also includes provisions for the collective responsibility of the Council of Ministers to the state legislature, reinforcing democratic governance. • Article 356: Grants the President of India the power to implement President’s Rule in a state based on a report submitted by the Governor if the state government is unable to function in accordance with constitutional provisions. 13 This article has often been criticized for being misused as a political tool, as evident in multiple instances where state governments have been dismissed under its provisions. These constitutional provisions have been interpreted by the judiciary in several landmark cases to clarify the scope and limitations of the Governor’s powers.
Courts have repeatedly held that the Governor’s role is largely ceremonial and that discretionary powers should be exercised within the constitutional framework rather than political considerations. Judicial Precedents on the Governor’s Role The judiciary has played pivotal role in defining and also in limiting the discretionary powers of the Governor. Several landmark cases have examined the Governor’s role in state governance, particularly in politically sensitive situations. • S. R. Bommai v. Union of India (1994): This landmark judgment on the misuse of Art.
356 and the discretionary power of the Governor in recommending President’s Rule.14
The Supreme Court has stated that the implementation of President’s Rule is subject to judicial review and cannot be enforced arbitrarily. The judgment reinforced that federalism is a fundamental part of the basic structure of the Constitution, ensuring that the Centre cannot misuse this power to undermine state autonomy, and the Governor must act within constitutional constraints rather than political considerations. The Court held that the floor test in the legislature is the ultimate method for determining the legitimacy of a government. If a Governor dismisses a government without allowing a floor test, it would be unconstitutional. The ruling in S.R.
Bommai curtailed the Governor’s power to recommend President’s Rule based solely on their discretion. • Rameshwar Prasad v. Union of India (2006)15: The case stemmed from the Bihar Governor’s decision in 2005 to recommend the dissolution of the state assembly without giving space for an alternative government to be formed. The Supreme Court later ruled that this move was unconstitutional, as it interfered with the democratic process. The Court emphasized that a Governor cannot make subjective judgments about whether a government can be formed; instead, the legislative process must take its natural course. This ruling reinforced the idea that the Governor’s role should be procedural, not interventionist, ensuring that democracy functions without unnecessary executive interference. • Subhash Desai v.
Principal Secretary, Governor of Maharashtra (2020): This case is a significant contemporary example of judicial scrutiny over gubernatorial decisions. 16 The case involved the Maharashtra political crisis of 2019, where the Governor’s actions in inviting Devendra Fadnavis to form the government without clear majority support were questioned. The Supreme Court has stated that the Governor’s discretion must align with constitutional morality and democratic principles. This means the Governor cannot act arbitrarily but must uphold the spirit of the Constitution while making decisions. The Court emphasized that a floor test should be conducted at the earliest to determine the government’s legitimacy. The ruling underscored that the Governor’s role is not to decide the fate of governments but to facilitate democratic processes in the legislature.
These judicial precedents collectively establish that Governor’s discretionary power is not absolute and it must be exercised within the constitutional framework. The principles set forth in S. R. Bommai, Rameshwar Prasad, and Subhash Desai cases have been pivotal in shaping the legal understanding of the Governor’s role, preventing its misuse, and ensuring that state governments function in accordance with democratic norms. Commission Reports and Recommendations Over the years, various expert committees and commissions have analysed the role of the Governor and proposed reforms to limit the scope for political interference. Among them, the Sarkaria Commission (1988) and the Punchhi Commission (2010) are the most significant in shaping the discourse on the Governor's role in India.
• Sarkaria Commission Report (1988): The Sarkaria Commission, set up to review Centre-State relations, provided detailed recommendations on the “appointment, tenure, and discretionary powers of the Governor”. Its findings aimed to ensure that the Governor’s role remains impartial and in line with the federal structure of the Constitution. 17 The Sarkaria Commission report stressed that the Governor should be a distinguished individual from outside the state and should not have been actively involved in politics in the recent past. This was intended to uphold the Governor’s neutrality and prevent undue political influence from the Centre. Additionally, the Commission also gave its recommendation that the Chief Minister be consulted before appointing the Governor to foster a cooperative federal relationship between the Centre and the states.
The Commission also addressed the misuse of Article 356, stating that it should only be used as a last resort and that the Governor should assess the situation impartially before recommending President’s Rule. 7 Despite these recommendations, successive governments have continued to appoint Governors based on political considerations, leading to allegations of bias and partisanship. • Punchhi Commission Report (2010): The Punchhi Commission was established to reassess Centre-State relations in light of contemporary challenges. 18 The Punchhi Commission took a strong stand on the role of the Governor, emphasizing the need for clarity and fairness in the way they exercise their powers. It recommended that the Governor’s authority be well-defined to prevent any misuse or overreach.
One of its key suggestions was to end the practice of Governors serving at the “pleasure of the President”, instead advocating for a fixed tenure to protect them from arbitrary removal. The Commission also argued that the Governor should not have unchecked discretionary powers beyond what the Constitution explicitly allows. Furthermore, it stressed the need for greater scrutiny of reports under Article 356, ensuring that decisions about imposing President’s Rule are based on facts rather than political considerations. Analytical Insights and Implementation Challenges The recommendations of both commissions were aimed at reducing the potential for political misuse of the Governor’s office. However, their implementation has been inconsistent.
The suggestion that the Chief Minister should be consulted before the appointment of a Governor has largely been ignored, as the central government continues to make unilateral appointments. Additionally, the proposal for a fixed tenure for Governors has not been adopted, leaving them vulnerable to removal at the Centre’s discretion. This has created a scenario where Governors, knowing that their tenure is uncertain, may act in ways that align with the political party in power at the centre. Moreover, the reports’ recommendations on Article 356 remain largely unimplemented. The judiciary, through cases like S. R. Bommai, has attempted to impose checks on the Governor’s role in recommending President’s Rule, but Governors still retain significant discretionary authority.
The Punchhi Commission’s call for greater judicial review of the Governor’s report under Article 356 has not been incorporated into constitutional amendments or parliamentary legislation. 19 Case Study: The 2019 Maharashtra Political Crisis and the Governor’s Role The Maharashtra political crisis of 2019 was a significant event that brought the Governor’s discretionary powers under intense judicial examination. The crisis unfolded after the October 2019 assembly elections, where no party secured a clear majority, resulting in political uncertainty. As events progressed, serious questions were raised about the Governor’s role in government formation and the use of emergency powers, sparking widespread debate on the limits of gubernatorial authority in a democracy.
Background of the Crisis In the 2019 Maharashtra Legislative Assembly elections, the “Bharatiya Janata Party (BJP)” won 105 seats, while its pre-poll alliance partner, the “Shiv Sena”, secured 56 seats. The alliance had a combined majority to form the government, but disagreements arose over the Chief Ministerial position. Shiv Sena insisted on a rotational Chief Minister arrangement, a demand the BJP rejected. This led to the breakdown of the alliance, leaving Maharashtra in a political deadlock. The “Nationalist Congress Party (NCP)” and the “Indian National Congress (INC)”, that won
54 and 44 seats respectively, entered negotiations with Shiv Sena to form a post-poll alliance,
the Maha Vikas Aghadi (MVA).20 As discussions continued, the Governor of Maharashtra, Bhagat Singh Koshyari, played a decisive role in determining the course of the crisis. Governor’s Controversial Actions
1. Refusal to Grant Extension for Government Formation
o On November 9, 2019, Governor Bhagat Singh Koshyari invited the BJP, being the single-largest party, to form the government in Maharashtra. However, the BJP declined the offer, citing its inability to secure the necessary majority, leading to further political uncertainty in the state. o The next day, the Governor invited Shiv Sena to stake a claim, but imposed an extremely short deadline of just 24 hours, which was criticized as arbitrary and unjustified given the complexity of coalition negotiations. Shiv Sena requested additional time, which the Governor denied. o The same process was repeated with the NCP, which was also denied additional time for securing support.
2. Imposition of President’s Rule
o On November 12, 2019, Governor Bhagat Singh Koshyari recommended the imposition of President’s Rule under Article 356, stating that no party had been able to form a stable government. This move effectively put the state under central rule, further intensifying the political deadlock in Maharashtra. o Critics argued that this decision was premature and did not allow adequate time for coalition-building efforts, violating the spirit of democratic governance. Judicial precedents such as S.R. Bommai emphasize that Article 356 should be used sparingly and with due caution, which appeared to be ignored in this case.
3. Midnight Government Formation and Revocation of President’s Rule
o In a surprising turn of events, early in the morning on November 23, 2019, around 5:47 AM, the Governor revoked President’s Rule and swiftly swore in Devendra Fadnavis (BJP) as Chief Minister and Ajit Pawar (a breakaway NCP leader) as Deputy Chief Minister. This unexpected move sparked intense political and legal debates, raising concerns about the Governor’s discretion and transparency in the decision-making process. o This decision was taken without a floor test and raised serious constitutional concerns regarding transparency and fairness. 11 The lack of public notice and the secrecy surrounding the swearing-in process further fueled allegations of political maneuvering.
4. Judicial Intervention and Floor Test
o The Shiv Sena-NCP-INC alliance challenged the Governor’s actions before the Supreme Court. o On November 26, 2019, The Supreme Court, stepping in to uphold democratic principles, ordered an immediate floor test in the Maharashtra Legislative Assembly to verify whether the Fadnavis government had the required majority. This ruling reaffirmed the principle that the Governor must facilitate the democratic process rather than pre-empt it. o Subsequently, Ajit Pawar withdrew support from the BJP, leading to the resignation of Devendra Fadnavis within 80 hours of being sworn in. 14 Shiv Sena’s Uddhav Thackeray was later took the oath as Chief Minister with the support of the MVA. Political Neutrality vs. Alleged Bias The Governor’s role in India has often been a topic of debate, with frequent allegations of political bias influencing key decisions.
While the Constitution envisions the Governor as a neutral constitutional authority, history shows that the position has sometimes been used to serve the interests of the ruling party at the Centre. The Governor’s discretionary powers, especially in matters like “government formation, dissolving the assembly, and recommending President’s Rule under Article 356”, have repeatedly come under scrutiny, raising concerns about whether these decisions are truly impartial or politically motivated.
Instances of Political Allegiance
1 Use of Article 356 to Dismiss State Governments
o The Governor’s use of Article 356 has often been criticized, particularly when it comes to dismissing state governments that are not led by rulling party at Centre. A significant example of this was the dismissal of the Karnataka government in 1989, which eventually led to the landmark S.R. Bommai v. Union of India case. In its ruling, the Supreme Court made it clear that arbitrary use of Article 356 is unconstitutional and must be subject to judicial review, reinforcing the need for fairness and accountability in such decisions. o More recently, in Arunachal Pradesh (2016) and Uttarakhand (2016), the Governors' recommendations for President’s Rule were criticized as politically motivated attempts to destabilize opposition-led governments.21
2 Partisan Decisions in Government Formation
o The role of the Governor in government formation has been a issue of controversy at several states. In Goa (2017), Manipur (2017), and Karnataka (2018), the Governor invited the BJP to form the government despite opposition parties claiming majority support. 22 The discretionary power of the Governor in these cases was perceived as favoring the ruling party at the Centre rather than adhering to constitutional conventions. o In the 2019 Maharashtra political crisis, Governor Bhagat Singh Koshyari was accused of favoring the BJP by administering the oath of office to Devendra Fadnavis and Ajit Pawar in a secretive pre-dawn ceremony, despite the opposing coalition (Maha Vikas Aghadi) having a majority. The Supreme Court intervened and ordered floor test, reaffirming that the Governor’s discretion must align with democratic principles.
Conclusion and Suggestions The role of the Governor in India remains a contested issue due to frequent allegations of political bias and misuse of discretionary powers. While the Constitution envisions the Governor as an independent and impartial authority, political realities suggest otherwise. The extensive judicial scrutiny in cases like S. R. Bommai, Rameshwar Prasad, and Subhash Desai demonstrates the recurring tensions between constitutional ideals and political practices. The Maharashtra crisis of 2019 exemplified how gubernatorial discretion, when exercised arbitrarily, can disrupt democratic processes and necessitate judicial intervention. Despite repeated recommendations by the Sarkaria and Punchhi Commissions, the issue of political interference in gubernatorial appointments and actions persists.
The failure to implement key recommendations, such as fixed tenure for Governors, mandatory consultation with the Chief Minister before appointment, and codification of discretionary powers, has allowed ambiguity to persist, leading to repeated constitutional crises. Without concrete reforms, the office of the Governor will continue to be perceived as an extension of the central government rather than as an impartial constitutional authority. Recommendations for Reform
1. Codification of the Governor’s Discretionary Powers
o The scope of the Governor’s discretionary powers should be clearly defined through constitutional amendments or parliamentary legislation to prevent arbitrary decision-making. o The Sarkaria and Punchhi Commissions have emphasized the need for clear guidelines on the Governor’s role in government formation, dismissal of governments, and the use of Article 356.
2. Fixed Tenure for Governors
o A fixed tenure i.e. five years, independent of the party in power at Centre, should be mandated to prevent arbitrary removals and ensure continuity in governance. o This will reduce the influence of political pressures on the Governor’s actions.
3. Mandatory Consultation with the Chief Minister
o The Chief Minister of a state should be consulted before the appointment of the Governor, as recommended by the Sarkaria Commission. o This will help ensure better coordination between the state and central governments and minimize allegations of political bias.
4. Judicial Review of Governor’s Reports
o The Supreme Court should have the power to directly review the Governor’s reports under Article 356 to determine whether they meet constitutional standards. o This would act as a check against politically motivated dismissals of state governments.
5. Depoliticization of the Appointment Process
o The appointment of Governors should be made more transparent by involving an independent selection committee rather than being solely at the discretion of the Union government. o The committee could include representatives from the judiciary, opposition parties, and independent constitutional experts to ensure non-partisan. Final Thoughts The Governor’s role in India, if exercised impartially, can serve as a stabilizing force in Centre- State relations. However, without reforms, the position will continue to be a point of contention in Indian politics. Implementing the recommendations outlined above would help restore the credibility of the office, ensuring that the Governor functions as a true constitutional authority rather than as an agent of the Centre.
Strengthening legal safeguards, judicial oversight, and institutional mechanisms is crucial for upholding democratic principles and preventing the misuse of gubernatorial powers. For India to uphold a strong federal structure and to maintain a healthy balance between the Centre and States, it is crucial to implement reforms that ensure the Governor remains a neutral and effective constitutional authority. The long-standing recommendations of various commissions should not just remain on paper—they need to be translated into practical policies that strengthen democratic integrity and prevent political interference in the Governor’s role.
Bibliography
Books & Reports • Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press, 1966). • M. P. Jain, Indian Constitutional Law (LexisNexis, 8th ed. 2022). • Sarkaria Commission Report, 1988, available at https://interstatecouncil. nic. in/report-ofthe-sarkaria-commission/. • Punchhi Commission Report, 2010, available at https://interstatecouncil. nic. in/report-of-thecommission-on-centre-state-relations/. Statutes & Constitutional Provisions • The Constitution of India, 1950. • The Government of India Act, 1935. • The Representation of the People Act, 1951. • Article 153 - Governors of States. • Article 154 - Executive power of the State. • Article 163 - Council of Ministers to aid and advise Governor. • Article 164 - Other provisions as to Ministers. • Article 356 - Provisions in case of failure of constitutional machinery in States.
Judicial Decisions • S. R. Bommai v. Union of India, (1994) 3 SCC 1, available at https://indiankanoon. org/doc/141126788/. • Rameshwar Prasad v. Union of India, (2006) 2 SCC 1, available at https://indiankanoon. org/doc/1872622/. • Subhash Desai v. Principal Secretary, Governor of Maharashtra, (2020) SCC OnLine SC 607, available at https://www. scobserver. in/court-case/maharashtra-political-crisis/.
Journal Articles • Abhishek Singh, The Role of the Governor in Indian Polity: An Analysis, 5 Indian J. Const. L. 89 (2021).
Nishtha Jha, Analyzing the Sena v Sena Battle: The Case of Subhash Desai v Principal Secretary, Governor of Maharashtra, 4 Jus Corpus L.J. 74 (2023).
Rhishikesh Dave, The Governor’s Role in Indian Federalism: A Constitutional Analysis, Nat’l L. U. Rev. 2023. • Pranav Verma, Governor’s Discretion and Federalism in India: A Constitutional Perspective, 12 J. Pol. & Gov. 45 (2020). Case Studies & Reports on State Assemblies • Election Commission of India, Maharashtra Legislative Assembly Election Results, 2019, available at https://eci.gov.in/files/file/11673-maharashtra-legislative-assembly-election- 2019/. • Supreme Court Observer, Maharashtra Political Crisis, available at https://www.scobserver.in/court-case/maharashtra-political-crisis/. • Arunachal Pradesh Political Crisis, 2016, available at https://www.thehindu.com/news/national/arunachal-crisis-a-timeline/article14005947.ece. • Uttarakhand Assembly Crisis, 2016, available at https://www.thehindu.com/news/national/other-states/uttarakhand-politicalcrisis/article8512157.ece.