The Governor is under the Constitution, not above it

• The functioning by institutions such as the ECI and the CAG of India has left much to be desired, the conduct of the Governors of some States has made a complete mockery of the Constitution and its limitations.

Constitutional Provisions

• Article 153: Provides a Governor for each State.
• Article 154: Executive power of the State shall be vested in the Governor.
• Article 154 (2)(a): Prohibits the Governor from exercising any function “conferred by existing law on any other Authority”.
• Article 163: There shall be a council of ministers with the Chief Minister at the head to aid and advise the Governor... except in so far as he is by or under this Constitution required to exercise his function or any of them in his discretion.

Acting in harmony

• Shamsher Singh vs State of Punjab 1974: The Governor exercises “all his powers and functions” by making rules for the convenient transactions of the business of the government of the State in accordance with Article 166 of the Constitution. These are called Rules of Business.
• The Court went on to hold that “the discretion conferred on the Governor means that as the Constitutional or the formal head of the State, the power is vested in him”
• It is only in the exercise of the power under Article 356 that the Governor will be justified in exercising his discretion even against the aid and advice of his council of ministers as per his discretionary power.
• In all other matters where the Governor acts in his discretion, he will act in harmony with his Council of Ministers.

Debates in the past

• Prof. K.T. Shah On Article 130 (now Article 154): The Constitution should make it imperative upon the Governor to use its power in accordance with the Constitution and the Law, that is to say, on the advice of his Ministers as provided for in the subsequent clauses and in other parts of the Constitution.”
• Appointment of governor by president: It was hotly debated whether the Governor should be appointed by the President of India or should be elected. Fearing that this would create a parallel State leadership, the Assembly instead adopted appointment by the President.
• G. Kher: “a Governor can do a great deal of good if he is a good Governor and he can do a great deal of mischief, if he is a bad Governor, in spite of the very little power given to him under the Constitution”
• K. Sen: “The question is whether by interfering, the Governor would be upholding the democratic idea or subverting it. It would really be a surrender of democracy.
• We have decided that the Governor should be a constitutional head. He would be the person really to lubricate the machinery and to see to it that all the wheels are going well by reason not of his interference, but his friendly intervention.”
• B. R. Ambedkar: According to the principles of the New Constitution, Governor is required to follow the advice of his ministry in all matters.
• Therefore, the real issue before the House is not nomination or election, but what powers you propose to give to your Governor.
• Nomination of governor and not election: If the Governor is a purely constitutional Governor with no more powers than what we contemplate expressly to give him in the Act. I personally do not see any very fundamental objection to the principle of nomination.”

The reality today

• These debates give us sufficient indication of the role, the powers, and the duties of the Governor.
• Certainly, the Governor has no powers to interfere with the administration in day-to-day affairs including to refuse assent to Bills passed by the Assembly.
• But what is happening today, especially in Opposition-ruled States is a shocking disregard by Governors for the Constitution.
• One can only hope and trust that the situation will be remedied by the judiciary at the earliest. It is only then that the rot can be stemmed.