Governance in India, a country with multiple strong cultural identities and a huge population, is an uphill battle. The Constitution makers formulated a unique path of quasi-federalism to fit India's peculiar circumstances. Making India an entirely federal country wasn't viable considering the pluralistic nature of our society, the constitution makers therefore chose to make a federal nation with some unitary character to keep it integrated. They created a strong center having dominant power over the state units. States were given the power to govern themselves and make laws for themselves.

However, to keep them within the boundaries of the constitution and make them stay united, various features were added to the constitution, making India a Quasi-federal Nation. One such attempt to maintain harmony between center and state is the creation of an office of governor in every state. The Constitution assigns the Governor the role of a constitution sentinel, maintaining an important link between the union and the states. However, this role that was envisioned to smoothen relations between the center and the state has now become the very reason for the conflict between them.

The Governor has become an agent of the central government, actively favoring the central government in their duties. These clashes started right after the creation of the post, and they have been more frequent in recent times, becoming a significant threat to Indian federalism. Time and again, serious questions have been posed on this problem, but nothing significant has been done to solve it. In this paper, the author will analyze the dotted past of the Governor post right from its discussion in the constituent assembly till the most recent development and deal with the shadow that it casts upon Indian Federalism.

India's Particular Brand Of Federalism

Federalism (from the Latin foedus, meaning 'pact', or 'covenant') usually refers to legal and political structures that distribute power territorially within a state. It requires the existence of two distinct levels of government, neither of which is legally or politically subordinate to the other. Its central feature is, therefore, shared sovereignty[1]. In India, the cabinet mission plan envisaged India as a federalist state, with the suggestion to create a weak center with limited power- tabled in the very first report of the constituent assembly.

However, after the Partition of India, the constitution makers feared the secessionist feelings spread in the country. With the adoption of the India Independence Act, the Constituent Assembly decided upon a more unitary version of federalism. [2] Over some time, this peculiarity of Indian Federalism came to be known as "Quasi-federalism"[3]. Moreover, the apex court declared federalism as a basic structure of India.[4] The offices for governance were created and assigned power following this arrangement during formation.

One such office is the governor's office, which is the outcome of this more unitary version. It was created to check the state's activity and maintain a link between the center and the state. However, soon after its creation, the office became highly controversial. Several petitions and allegations of misuse of power by the governor to favor the ruling party at the center have been raised. At different points in time, different committees have been set up to bring out reforms in the post. However, the suggestions given have yet to be acted upon, nor has the controversy surrounding the office gotten better in any sort. Especially in the current political landscape, the office of governor has once again come under fire, and the blatant misuse of power has become apparent, with many new incidents relating to governors being highlighted in the news. It is high time for reforms in this field.

The Ideal Version Of Governor- The Lynchpin Of Indian Federalism

The framers of the Constitution established the position of Governor with a significant purpose in mind. It was created to prevent the state from being completely unsupervised from the center while following the federal structure. It was the result of the Quasi-federal structure of India. The Governor is the link between the center and the state and is supposed to build good center-state relations. He has functions to discharge at both levels. Therefore, he has different roles that he is required to balance harmoniously. [5]

He is a constitutional head of a state, having a sentinel role. He takes an oath to protect, preserve, and defend the Constitution. For doing so, he has been awarded special powers as well, including the power of ordinance,[6] emergency, reserving a bill for presidential consideration[7], sending reports to the president every fortnight, and more.

The proper function of a governor or the ideal fashion in which a governor should act is to assist the state government in better law formation, guiding them to remain within the boundaries of the Constitution. They help to maintain the smooth functioning of the state in case of crises, ensuring that people do not suffer in situations of failure of their representative or any sort. It is his primary duty to uphold healthy relations between the center and the state and act as a channel for communication. He tries to accomplish this by providing information to the center through reports. These reports allow the central government to monitor state activity and ensure the harmonious functioning of India's quasi-federalism.

The Governor is also the executive head of a state, and every bill of the state legislature must get the consent of the Governor to be an act. He is expected to be a neutral person who judges the state legislature's bills before consenting to it. He can revert the bill to the legislature by giving some suggestions, withhold his assent, or reserve a bill for consideration by the president if, in his opinion, the bill derogates the power of the High Court and endangers its role in the state as envisioned by the Constitution and on few more reasonable grounds. He can report to the president to impose a state emergency in case of constitutional machinery failure.

Governor is also empowered to promulgate ordinances when either the State Assembly is not in session or case of two Houses one of them is not in session, or when the Governor is satisfied that circumstances render it necessary for him to take immediate action. Along with these powers, he is also awarded plenty of other powers, like appointing the chief minister from the majority party, dismissing the chief minister in case of lost confidence, summoning, promulging, or dissolving the assembly in cases of necessities, and power to pardon offenders. He is deemed an unbiased prudent officer working in accordance with constitutional mandates while discharging these functions.

The Bleak Reality Of The Governor's Position In India

Initially, after the independence, there was no conflict with the role of governors- mainly because for more than two decades, there was a single-party government in India, i.e., congress was in government at both central and state levels. Hence, differences, if any arose, were settled in a very cordial way at party meetings.[8] However, the problem started after 1967, when in several states, different political parties came to power in states while Congress remained in the central government. The problems with the post of the Governor became apparent and sparked multiple debates.

The Central Government started to use its power over the Governor to remove and transfer the Governors. Misuse of the governor's powers, such as withholding assent on bills, dissolving state assemblies, and facilitating the President's rule over states based on political whims, started occurring more frequently.[9] As a result of these actions, governors earned the reputation of being the agents of the central government, a perception that has proven difficult to dispel.

In 1983, after the Karnataka Chief Minister's outcry in the form of the "White Paper on the Office of the Governor," a Commission was formed by the then Prime Minister. However, this was not a fair attempt at bringing justice as the Centre handpicked the members. Unsurprisingly, the Sarkaria Commission's report was a 'damp squib'. Its research was shoddy, especially on the crucial question of the constitutional status and functions of Governors. [10]

The controversy calmed down somewhat in the period 1990-2014. However, after 2014, with a strong central government, the controversy again gained traction. Multiple incidents started being explicitly seen in states like Tamil Nadu, West Bengal, Delhi, Punjab, Telangana, and Kerala with opposition state governments.

To quote a few: In Tamil Nadu, the governor recently came under fire for dismissing a sitting minister at his discretion when he had no power to do so. [11] In Maharashtra, the Governor urged former Chief Minister to take a floor test to demonstrate his majority. He called for a trust vote despite there being insufficient reasons to do so. The Supreme Court warned him- that asking for a trust vote only because of disagreements amongst MPs from the ruling party would destabilize an elected government. However, the CM put his resignation in the face of impending loss, which led to the election of present chief minister of Maharashtra. [12]

Many such incidents have happened recently, showing Governors blatantly favoring the central government and then getting public backlash or admonishment by the Supreme Court itself. However, the Central Government has yet to show any intent to take any serious action to remedy the situation.

West Bengal: A Burning Example Of Governor's Shameless Misuse Of Power

In contemporary India, disagreements between governors and states have become the new normal in the headlines. When it comes to West Bengal, it has reached unprecedented heights. West Bengal has always had a history of acrimonious relationships between the state government and the governor. Moreover, today, the root cause of the tussle is that Bengal always has an opposition government to that at the center.

The animosity can be traced back to 1967 when due to some clash between the then Chief Minister and the governor, the governor sent a recommendation to the centre for the state government's dismissal which led to the dispersal of the state government. The disagreement continued and led to another notable event in 1984 when the Governor appointed a Vice Chancellor against the will of the council of ministers. In retaliation, the ministers abstained from all of the governor's events. They even wrote a report to the Sarkari Commission asserting that there was no desirability for the post of governor. However, these kinds of instances persisted and continued to happen. [13]

The relations have reached an all-time low after 2019. West Bengal has maintained its position of being regularly in the news for matters of state-governor conflict. The governor has frequently been accused of running a "puppet regime" and "parallel government in the state." In a recent event in 2023, after rejecting the nominees of the state government to appoint as VC of state-run universities on the grounds of being corrupt and accused, the West Bengal governor started appointing interim VCs on its own.

The state government criticized the act calling it irresponsible political statements similar to those made by the party at the central government and threatening to block finance of those universities.[14] In an event, he refused to accept the joining report of the state election commission. [15] In another instance, the state government labeled the governor's action as an attempt to "paralyze state administration", alleging that he was holding back bills passed by the state assembly. [16]

The Governor Office: Stuck In The Power Web Of Centre?

The trends showcase that the governors consistently favor the central government. But why? The fault lies in the provisions governing the governors, i.e., the Constitution. Even a bare reading of the Governor's powers in the Constitution of India will impress upon the reader that the Governor has been granted a healthy amount of discretion and independence. The only control over the Governor comes in the form of the President of India, who is a nominal head representing the will of the ruling party in the Centre.

From their very appointment, the unfair influence of the Centre entraps the Governor. Article 155 assigns the power to appoint the Governor of a state to the President. However, as stated above, according to the Constitution, the President is only a nominal head. The real power is exercised by the prime minister of India along with the council of ministers as decreed under Article 74. The general practice of the Governor's is that the central government puts forward a few people and recommends their names to the President to appoint any of them as a governor of a state. The Constitution prescribes only two criteria to filter out the candidates, i.e., the person should be a citizen of India and above 35 years of age.

None of these criteria says anything about the political relations and background of the candidate. It is seen that often, the personalities selected as candidates have good relations with the central government and are intentionally posted in areas where the state is ruled by the opposition party[17]. Here starts the conflict.

Not only the appointment process, transfer, emoluments, allowances, privileges, and removal of the Governor all lie in the hands of the President or indirectly in the hands of the central government. The Governor serves in the office till the pleasure of the President. This means that the Governor holds office on the sweet will of the "central government in power."

This is because no statute defines in a comprehensive and precise manner what the grounds of appointment, transfer, or removal will be. The whole office of the Governor is working on the fancies of the central government, which gives them power to manipulate the office of the Governor. This has given unbridled power in the hands of the central government and has become a significant threat to Indian federalism. [18]

Impact On Indian Governance

The constitution makers aimed to establish a more substantial central authority to maintain unity among its constituents without intervening in the day-to-day operations of the state. However, today the Governor's office has become an easy tool for the center to use against the state government. This widespread misuse of the governor's position has had significant detrimental effects on Indian governance.

The first and most obvious effect is the worsening centre state relations. Such acts by the central government become oil in the fire of the already tense relationship between the center and state. The division of power is there for efficient administration and such attempts to sub-ordinate each other unconstitutionally lead to inefficient administration. Tussles of this kind lead to increased costs because of halted development projects and judicial costs. Another problem is the unwarranted enacting of presidential rule- Rendering an elected government by the people inactive by a nominated body, is a blatant violation of democracy.

These attempts slow down the process of law-making and development. Governors often reserve bills enacted by the state government for the President's assent but never actually forward them to the President. Such actions, if allowed, will lead to a situation where there is no sovereignty of the state; it will have to act in concurrence of the Governor. These problems are a significant threat for Indian federalism if not reformed.

Making The Governor Just: Is It Possible?

'Power tends to corrupt and absolute power corrupts absolutely.'- Lord Acton[SP1]
The constitutional regulations governing the appointment of Governors contain a fundamental flaw. They place excessive trust in the impartiality and bravery of an individual occupying a position to which they are appointed by a political faction with the power to dismiss them at any time and for any reason. The appointment process is flawed, and the lack of a secure tenure has been a subject of longstanding debate. Commissions such as the Sarkaria Commission, the NCRWC, the Commission on center-state relations, and many judicial precedents have urged the government to add specific criteria for appointing and removing governors. Such commissions have gone into detail, systematically providing extensive solutions to bring in checks and balances in the post of the Governor. However, the government has never acted upon any of these solutions.

This leads us to the question, "Do we truly need a post of Governor?" An increasingly popular opinion on the matter is that the post should be done away with, as the Governor's ideal function is ceremonial and is nothing that the CM cannot tackle. They opine that the post is a mere drain on government revenue and is only causing problems. [19] However, many scholars argue that the post is necessary to maintain the constitutional machinery of the state and is required in India to maintain a stable state. We also agree that such a position is required, but the contentious position does not have to be occupied by a single person under the center's control.

In our view, a plausible solution could be to make the governor subject to the majority decision of a committee consisting of the following members:

• Two nominees by the central government
• Two nominees of the concerned state government
• A retired High Court judge nominated by the Chief Justice of the High Court of the respective state in consultation with the Chief Justice of India

Significant decisions made by the Governor, such as giving assent to bills, expressing dissent on a bill, dismissing ministers, and summoning or dissolving the legislative assembly, should be made after thorough deliberation by the committee within a specified time frame, let's say, one month. The Governor should articulate their opinion first, and the committee should then approve the decision within the given period. In cases requiring urgent action, the Governor can proceed, but the committee must subsequently endorse the actions. This approach would ensure that the Governor's role is purely ceremonial, preventing arbitrary actions and holding the Governor accountable for their decisions. This will help make the office of a governor a more responsible post.

Such a committee would allow the Governor to act according to the ideal objective of the post and save him from political pressures. The presence of a neutral person in the form of the retired high court judge will ensure a fair vote without putting the entire burden of the decision onto him. It would also save the government the trouble of amending multiple constitutional articles and issuing extensive guidelines, each of which would have to be heavily debated in the Parliament.

Conclusion
"In our diverse nation, federalism is the quilt that stitches us together"- Atal Bihari Vajpayee

With our rich and diverse cultural backgrounds, ensuring healthy federal relations is a challenging task. Governors, who are responsible for fostering these relations, have themselves become a significant issue. This paper illuminates the numerous incidents and challenges that affect the role.

There is an immediate need to revise the current constitutional provisions or introduce an entirely new system to ensure fairness and justice in the role. It is imperative to implement fundamental reforms to effectively realize the quasi-federalism envisioned by the constitution, empowering state governments with the necessary tools and autonomy. We hope that the central government will be held accountable soon, leading to the establishment of well-functioning governor positions and harmonious center-state relations.

End Notes:

1. Andrew Heywood, Politics (5th edn, Red Globe Press 2019)
2. H.M Rajashekara, 'The Nature of Indian Federalism: A Critique' [1997] AS 245, 246
3. K.C. Wheare, Federal Government (4rth edn, Oxford University Press 1970)
4. S.R. Bommai v. Union of India, (1994) 3 SCC 1
5. B P Singhal v Union of India, (2010) 6 SCC 331
6. Art 213
7. Constitution of India 1950, Art 254(2)
8. Himanshi, 'Controversy Surrounding the Post of Governor in the Indian Parliamentary Democracy' [2021] IJASS 48, 49
9. Iska source hai koi?
10. A.G. Noorani, 'Governor: A colonial relic' (Frontline, 20 June 2021)
    https://frontline.thehindu.com/the-nation/governor-a-colonial-relic-abuse-of-power-by-central-governments-wrecking-parliamentary-system-in-states/article34798718.ece
    accessed 16 October 2023
11. Editorial, 'Constitutional misadventure: On the Tamil Nadu Governor's move' The Hindu (Chennai, 1 July 2023)
    https://www.thehindu.com/opinion/editorial/constitutional-misadventure-the-hindu-editorial-on-the-tamil-nadu-governors-move/article67027661.ece
    accessed 16 October 2023
12. Padmakshi Sharma, 'Maharashtra Case - Governor's Decision For Floor Test Wrong, But Uddhav Govt Can't Be Restored As He Resigned : Supreme Court' (Live Law, 11 May 2023)
    https://www.livelaw.in/top-stories/shivsena-supreme-court-maharashtra-case-uddhav-thackeray-eknath-shinde-228476
    accessed 17 October 2023
13. Editorial, 'Governor vs Bengal government: A history of political turbulence' The Economic Times (Delhi, 16 Sept 2023)
    Mamata Banerjee: Governor vs Bengal government: A history of political turbulence - The Economic Times (indiatimes.com)
    accessed 17 October 2023
14. Editorial, 'Amid appointment row, Bengal governor slams 'corrupt' V-Cs' Hindustan Times (Delhi, 7 Sept 2023)
    Amid appointment row, Bengal governor slams 'corrupt' V-Cs | Latest News India - Hindustan Times
    accessed 17 October 2023
15. Saurabh Gupta, ' "State Of Fear", Says Bengal Governor; Mamata Banerjee Hits Back' (NDTV, 23 June 2023)
    "State Of Fear", Says Bengal Governor; Mamata Banerjee Hits Back (ndtv.com)
    accessed 18 October 2023
16. Editorial, 'Mamata Banerjee attacks CV Ananda Bose, says governor holding back all bills passed by West Bengal assembly' Live Mint (New Delhi, 5 Sept 2023)
    https://www.livemint.com/politics/news/mamata-banerjee-attacks-cv-ananda-bose-says-governor-holding-back-all-bills-passed-by-west-bengal-assembly-11693904990848.html
    accessed 18 October 2023
17. Namrata Tripathi, 'Role of Governor and Constitution of India' (2022) 5 Int'l JL Mgmt & Human 1193
18. Piyush Khandelwal & Lakshyaraj Singh, 'Governor and the Indian Federalism' (2022-2023) 4 Indian JL & Legal Rsch 1
19. Neeta Lal, 'Does India Need State Governors?' (The Diplomat, 8 July 2023)
    https://thediplomat.com/2023/07/does-india-need-state-governors/
    accessed 19 October 2023

Written By: Shahin Parveen And Nandika Agarwal (2nd-year law students at RMLNLU, Lucknow)