India, that is Bharat is a Union of States, this is what the very 1st Article of our constitution talks about, the essence of India lies in the States[1]. Every state has its own Chief Minister, who administers the state with his Council of Ministers, in the same manner as the Prime Minister of India, does with his Council of Ministers in the Central i.e for India. General Elections are conducted for the Appointment to the office of the Prime Minister, State Elections are conducted for appointment to the office of the Chief Minister of that State[2]. The constitution added the post of Governor who acts as the executive head and clearly states that he has to work on the advice of the CM of the state.

There has been a lot of controversy that has occurred over the years concerning Governors and CM and in the past five to eight years it has intensified even more. Democracy is a system of government in which citizens have the power to choose representatives from among themselves to form a governing body so when people discuss the operational powers of a governor or left-man governor in a democratic system then their positions are not considered to wield much authority since they are not elected by the people.

The democratic nature of our nation is affected when there is a tussle between the Governor and Chief-Minister, as a person who reaches the office of CM is elected by the people and comes through the process of election, whereas a Governor is appointed by the President on the aid and advice of the Prime Minister who holds the power in the center, as our political system is based on Central Government and State Governments.

In this article, we will see why there is a change in the nature of the functioning of governor in contemporary times and why it is a concern for the spirit of Constituion.

Historical Origin of the Post of Governor and its Continuation After Independence
Its roots can be seen in the original establishment of the Company's authority in India when the Company's factories in various regions of the country had to be placed under the control of separate Governors (also known as Presidents), each of whom had a direct line of communication with the Company's headquarters in London[3].

Governors were primarily representatives of the British colonial administration, supporting the interests of the Raj during the era of the Government of India Act in 1935 which was the pre-independence period. According to the discussions in the Constituent Assembly's records, there was general agreement among its members about keeping the position of Governor as the constitutional representative for the states after India gained independence, but they were in disagreement over the process of selecting governor, who would act impartially in Raj Bhavan.

When the matter of the governor's appointment came up for discussion in the constituent assembly suggestions of their direct election or appointment on behalf of the president were mooted. The notion of having elected governors was offered by a subcommittee consisting of B.G. Kher, K.N. Katju, and P. Subbarayan. They hoped that by making such a change, governors' roles would become more accountable and representative.

The constituent assembly discussions about the Governor's position highlight an essential point. The Constitution was the culmination of the people's democratic ambitions, and its key foundations liberty, fraternity, equality, universal adult suffrage, the parliamentary system, and fundamental rights - are all manifestations of those goals. However, there were times when the framers lacked the courage of their convictions. If providing universal adult suffrage was a leap of faith, the framers fell short in other instances, motivated by concerns about maintaining national integrity and averting disintegration amid the agony of Partition. The members of the Constituent Assembly were balancing two important ideas when it came to the position of the Governor[4].

They believed in federalism, which means giving power to individual states, but they didn't want to give too much power because they were worried about states breaking away from the country. They also believed in democracy, where people have a say in how the country is run, but they also wanted to have some control to prevent any extreme actions that could harm the country. The role of the Governor in the Constitution acted like a kind of "control point." It was there to make sure that federalism and the will of the people didn't go too far, especially in situations like emergencies or making important decisions through ordinances[5]. The process of electing a governor was not taken up by the constitution because it would have caused confrontation with the Chief Minister, as he is also coming to the office through election. As a result, the Indian Constitution eventually accepted the system of appointed Governors rather than elected officials.

Dr.B.R Ambedkar expressed his views in the following lines:
" The President or Governor is typically obligated to adhere to the counsel provided by their Ministers. He is unable to act in opposition to their advice, nor can he take any action without their guidance. Governor, as outlined in the Constitution, lacks autonomous decision-making authority and is instead entrusted with specific responsibilities.[6]"

Nehru concurred: "We want to emphasize the Ministerial character of the Government, that power resided in the Ministry and the Legislature and not in the President or Governor as such. At the same time, we did not want to make the President or Governor just a mere figurehead. We did not give him any real power, but we have made his position one of great authority and dignity."

The role was eventually created with the assurance that the elected executive would lawfully limit the governor's powers.

Constitutional Provision Concerning the Office of Governor:
PART VI of the Constitution deals with the other half of Indian federalism, i.e. the States. Article 152-237 deals with various provisions related to States. It covers the executive, legislature, and judiciary wings of the states. Article 152 clarifies the definition of state, while the next set of articles lists the roles and responsibilities of the Governors of states[7]. The appointment of the Governor is carried out by the President through the issuance of a warrant, which is executed with the President's signature and official seal. It is stated that the Governor has a dual role.

He is the constitutional head of the state, bound by the advice of his Chief Minister and his council of ministers. He functions as a bridge between the Union Government and the State Government.

The Governor's appointment, his powers, and everything related to the office of Governor have been discussed under Article 153 to Article 162 of the Constitution. Article 153, says that there should be a Governor in every state, and the same person can be appointed as governor for two or more states.

While taking the oath as per Article 159 of the constitution governor says"  I will to the best of my ability preserve, protect, and defend the constitution and the law". Keeping this in mind governor discharges a few functions as mentioned in chapter II of part VI of the constitution from article 153 to article 162, some of them are explained as follows:

• EXECUTIVE POWER vested by the governor under Article 154 is vested by the governor. He shall avail it directly or through the officer's sub-ordinate to him unless it's a power given to another authority on an existing law.
• Article 160 states for future requirements if any law has not been made to discharge powers by the governor, the president may vest some powers as he/she/they may deem fit.
• JUDICIAL POWER - Article 161 states governor can grant pardons, suspend, reduce the term, or revoke the sentences in certain cases or delay, pardon, cancel the punishment or reduce, cancel, or suspend the sentence of any person (natural person or legal person including dead men, child in mother's womb) convicted of any offense under any law related to matter which comes under executive power of the state's ambit.
• LEGISLATIVE POWERS- passing any bill in the state legislature requires the assent and signature of the governor.
• The governor can withhold a bill and send it to the president for consideration.

Introduce the annual budget in the state assembly.

A money bill can only be introduced only after the governor approves it in the state legislative assembly.

• During an emergency governor becomes the head of state and the party in power dissolves therefore all the control in that state is held by the governor.
• If there is no absolute majority then the governor at his/her pleasure can choose any chief minister.
• The governor holds the discretion to send a report to the President on the activities of the state.

"The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit..." Article 174 of the Constitution. The provision also puts a responsibility on the Governor to ensure that the House is summoned at least once every six months. ( The court read the power to summon the House as a "function" of the Governor and not a "power" he enjoys.) Although it is the Governor's prerogative to summon the House, according to Article 163, the Governor is required to act on the "aid and advice" of the Cabinet. So, when the Governor summons the House under Article 174, this is not of his or her own will but on the aid and advice of the Cabinet.

The provisions that are deemed as controversial and time and again have been misused are Article 163, the use of discretion by the Governor on the aid and advice given to him by the CM and his CoM, power to appoint the chief minister under Article 164, the power to summon, adjourn, and dissolve the Legislative Assembly under 174, the proposal to president form President's Rule in a situation where he thinks the state government is not able to function, and there is breakdown of Constitutional Machinery under 356[8].

"Frequent Signs of Confrontation Between Raj Bhavan and Elected State Government"

The conflicts between the Governor's office and the Chief Minister aren't new; they began shortly after India gained independence. Promises to limit the Governor's powers didn't hold up. There are numerous examples of the Governor's position being abused, usually at the behest of the ruling party at the Centre. The process of appointment has generally been the cause behind it.

For example, in 1952, after India's first election, the Governor of Madras State asked C. Rajagopalachari, a fellow Congressman, to form the government, even though the United Front had more seats than the Congress, and Rajagopalachari wasn't even a Member of the Legislative Assembly. In 1954, the Punjab government was dismissed simply because Prime Minister Nehru wasn't pleased with the Chief Minister.

In 1959, a Governor who was easily influenced helped the Nehru government dismiss the Communist government in Kerala, even when they were competing in elections. As the name of the governor who was appointed, by the President was sent by the Central Government, the governor appointed started working for the Centre and caused impediments in the independent functioning of the State[9].

In the past 70 years, not much has changed. The office of governor has been in controversy in several states, let us go through some of the recent controversies out of many.

The Governor's discretionary powers to invite the leader of the largest party/alliance, post-election, to form the government has often been misused to favor a particular political party.

Goa: The 2017 Goa elections resulted in a hung legislature, meaning no party had a clear majority. Despite the Congress having more seats, the former governor Mridula Sinha asked the Manohar Parrikar-led BJP to form the government[10].

Manipur- In 2017, a similar situation occurred in Manipur. The Congress had won the most seats in the assembly elections, with 28 out of 60 seats. However, instead of inviting the Congress to form the government, the then-governor, Najma Heptulla, asked a group formed by the BJP, which had won 21 seats, to do so.

In several cases, politicians and former bureaucrats identifying with a particular political ideology have been appointed as Governors by the central government. This goes against the constitutionally mandated neutral seat and has resulted in bias, as appears to have happened in Karnataka, West Bengal, Tamil Nadu, Kerala etc.

Madhya Pradesh: In March 2020, the late Madhya Pradesh Governor Lalji Tandon asked for a floor test, giving the Congress-led government led by Kamal Nath 48 hours' notice. This came after a BJP delegation, led by Shivraj Singh Chouhan, demanded an immediate floor test, claiming that the Kamal Nath administration was a "minority government" due to 22 of its MLAs leaving the party along with Jyotiraditya Scindia. In response, the Congress went to the Supreme Court, challenging the governor's decision and citing difficulties in accessing its 19 MLAs who were in Karnataka[11].

Tamil Nadu: DMK leader V Senthil Balaji is jailed. He has been arrested in a money laundering case and corruption for taking cash for getting jobs scam. Under such circumstances in an abrupt move governor of Tamil Nadu, R. N. Ravi dismissed V Senthil Balaji from the council of ministers. Balaji was a minister without a portfolio which means he didn't hold any particular ministry or had no specific responsibilities still he would be paid a ministerial salary in the capacity of a legislative member and could cast a vote in cabinet.

This created a conflict between C.M. Stalin and R. N. Ravi as the former governor exercised beyond his powers and he will now deal with the matter legally. Constitutionally only the C.M. has this responsibility to remove anyone from office and not the governor[12].

Manipur: The ethnic strife between Kukis and Meiteis which started in May and is still ongoing still emergency was not declared. Chief Minister N. Biren Singh at one point also wanted to resign from his position as he failed to control such massive violence, rape, beheadings, and violations of human rights. It was nearly a situation of civil war. There was a prolonged silence from the side of the Centre as center and state both are ruled by B.J.P. It was almost as if they were mourning in silence which is of no use for handling such a grave situation. C.M. lost trust within the party as well. After the incident of rape of Kukis' women and also police being a witness to the incident and victims when asked for shield by police, they still couldn't able to step into the situation. Everything showed a mockery of administration and government control over Manipur[13].

Governor of Manipur, Anusuiya Uikey who was elected at the pleasure of the President did not take cognizance and he has the power to send the report to the President about the activities of the state which are boiling due to strife. At most she asked both communities to continue living in peace and harmony and also blamed it on infiltrations across the border or refugees from Myanmar might have enraged the conflict. Under Article 356 of the constitution of India, the governor can recommend an emergency and the president's rule can henceforth be imposed. The governor then administers the state.

When the governor acts in support of the ruling party, it is against the spirit of nonpartisanship that is expected from the person sitting on constitutional posts. It is because of such incidents, that negative terms like an agent of the Centre, Puppet, and rubber stamps are used to describe a governor of the state.

The apathetic approach of those who designed the constitution reveals their original colonial motive in establishing this role, which was to maintain strong central control. This becomes apparent in how Governors are appointed, making them susceptible to Union government influence. Moreover, the Governor's discretionary authority to form a government in cases of a tied assembly election has led to a democratic crisis in states where the people's choice is overridden to consolidate power for the party in control at the central government level.

The Constitution Provisions with respect to Governor need re-orientation
The Governors Committee (1971) laid down the responsibility on the governor to see that the administration of the state does not break down due to political instability and he must send a regular report about the political situation of the State. However, the imposition of the President's rule Article 356) in case of breakdown of constitutional machinery in a State has been frequently misused by the central government.

The Supreme Court of India, time and again in several cases has reiterated that the Governor has to work with the aid and advice of the Chief Minister and cannot act on his own will.

In the pivotal 1974 case of Shamsher Singh v State of Punjab, decided by a seven-judge Constitution bench of the Supreme Court, it was established that a Governor must use their formal constitutional powers based solely on the advice of their ministers, with a few exceptional circumstances where this rule doesn't apply. These exceptions include situations where a government loses its majority and when deciding which party should take control, cases where the advice of the Council of Ministers can't be sought or trusted. The Governor's decision in such cases hinges on whether the government has a majority in the House.[14]

In SR Bommai vs Union of India case, 1994: This case was about the powers of the Governor to dismiss state government under article 356. The nine bench judges of the Supreme Court ruled that the floor test should be the only way to determine the majority of the government and not the subjective opinion of the Governor[15].

In the Nabam Rebia case, 2016: the Supreme Court ruled that the Governor is just an executive and nominee, and not an elected representative, and his powers flow from the aid and advice of the cabinet ministers. The use of discretionary powers for summoning or dissolving assembly sessions without the advice of the cabinet is unconstitutional[16].

Conclusion
Though there are several cases of tussling and allegations of the governor acting as a political instrument, in some states, the governors are performing their duty of keeping the spirit of the constitution alive and acting as guardians of the constitution in states.

There is a need for envisaging radical reform concerning the office of the Governor, it's high time that various stakeholders sit together and address the issue instead of having a tussle with each other because, at the end of the day, it's the general public that suffers. The authority to appoint and dismiss governors should not solely be vested in the ruling party but rather should be carried out in a manner that is characterized by increased federalism and cooperation.

The governor's rationale for their decisions should be disclosed to the public, along with other proposed reforms. At a time when regional parties of state want to be heard by the Centre, the governor should perform his constitutional duty efficiently and voice the concerns of states to the central government, rather than going against the state government at the behest of the Central Government. Identifying areas of discretion, fixitime frameframe for them to act, and making it explicit that they are obliged to go by Cabinet advice on dealing with Bills can be considered.

End Notes:

• Article 1 in The Constitution Of India 1949, 1, https://indiankanoon.org/doc/1406924/ (last visited Oct 8, 2023).
• Satya Prakash Dash, INDIAN FEDERALISM & DISTRIBUTION OF RESPONSIBILITIES, Indian J. Polit. Sci. 697 (2007).
• Daljit Singh, The Position of a State Governor in India, 22 Indian J. Polit. Sci. 232 (1961).
• KP Singh, THE GOVERNOR IN THE CONSTITUENT ASSEMBLY, 26 Indian J. Polit. Sci. 37 (1965).
• Gautam Bhatia, Do We Need the Office of the Governor?, The Hindu, May 23, 2018, https://www.thehindu.com/opinion/lead/do-we-need-the-office-of-the-governor/article23971800.ece (last visited Oct 4, 2023).
• 01 Aug 1949 Archives, Constitution of India, https://www.constitutionofindia.net/debates/01-aug-1949/ (last visited Oct 8, 2023).
• Rajendra Nayak, Powers of the Governor under the Sixth Schedule to the Indian Constitution, 9 J. Indian Law Inst. 237 (1967).
• When Governors Decide | Economic and Political Weekly, https://www.epw.in/journal/2018/20/editorials/when-governors-decide.html/ (last visited Oct 6, 2023).
• Governing the Governors, Frontline (2018), https://frontline.thehindu.com/cover-story/article24440645.ece (last visited Oct 6, 2023).
• Prakash Kamat, It's a Power Grab by BJP in Goa, Says GSM, The Hindu, Mar. 13, 2017, https://www.thehindu.com/news/national/its-a-power-grab-by-bjp-in-goa-says-gsm/article17458822.ece (last visited Oct 8, 2023).
• Sidharth Yadav, Madhya Pradesh Crisis: Kamal Nath, Governor Spar over Floor Test, The Hindu, Mar. 16, 2020, https://www.thehindu.com/news/national/kamal-nath-writes-to-governor-stating-floor-test-isnt-possible-when-mlas-are-in-captivity/article31081180.ece (last visited Oct 8, 2023).
• Tussle between Stalin, N Ravi: When Tamil Nadu govt opposed the Governor' post 50 years ago, The Indian Express (Jul. 11, 2023), https://indianexpress.com/article/explained/explained-politics/stalin-n-ravi-when-tamil-nadu-opposed-governor-50-years-ago-8827394/ (last visited Oct 8, 2023).
• Behind the violence in Manipur: Longstanding tensions between hill and valley people, the Meitei demand for ST status, and a recent HC order, The Indian Express (May 4, 2023), https://indianexpress.com/article/explained/manipur-clashes-meitei-scheduled-tribe-explained-8591158/ (last visited Oct 8, 2023).
• Shamsher Singh & Anr vs State Of Punjab 1974 SCR(1) 814
• S. R. Bommai v. Union of India, AIR 1994 SC 1918.
• Nabam Rebia v. Deputy Speaker, (2016) 8 SCC 1.

Written By:

• Khusboo Ghorawat
• Surya Pratap