In its recently delivered judgment on the Presidential Reference concerning the role and powers of Governors—particularly in relation to Bills passed by State Legislatures and the question of whether a time limit can be prescribed for the President to decide on Bills reserved for consideration—the Supreme Court declined to impose any such time limit. However, the Court took the opportunity to clarify the contours of the Governor’s authority and responsibilities within the constitutional framework.
A governor has three options when a state assembly passes a Bill
Two key points from the judgment, relevant to the Governor’s powers while dealing with Bills passed by the State Legislature, deserve emphasis. First, the Court held that the Governor is not necessarily bound to act on the aid and advice of the Council of Ministers when exercising functions under Article 200. The judgment states: “The Governor has three constitutional options before him, under Article 200, namely - to assent, reserve the Bill for the consideration of the President, or withhold assent and return the Bill to the Legislature with comments.
Pertinently, the third option - to withhold assent and return with comments - is only available to the Governor when it is not a Money Bill. The Governor enjoys discretion in choosing from these three constitutional options and is not bound by the aid and advice of the Council of Ministers, while exercising his function under Article 200.”
A governor doesn’t quite have sky-high power
Second, the Court held that the Governor cannot withhold assent to a Bill indefinitely; if he does not agree, he must return it to the State Legislature for reconsideration. The role of the Governor—whether in granting assent to Bills or in exercising other constitutional powers—has long been a matter of debate, to the extent that the very necessity of the office has been questioned on multiple occasions.
The Sarkaria Commission (1987), constituted to examine Centre–State relations, underscored the importance of the Governor’s office, noting that “the Governor, whether acting with or without the advice of the Council of Ministers, plays a pivotal role in our constitutional system and its working.”
Ensuring the “continuity of government” in the States was a key priority for the Constitution’s framers, prompting an extensive and detailed debate in the Constituent Assembly on the Governor’s role, position, and powers.
Constituent Assembly debates on a governor’s appointment
Initially, a majority of Constituent Assembly members favoured an elected Governor. B.N. Rau proposed an indirect election through proportional representation.
As Shubhankar Dam, Professor of Public Law and Governance at the University of Portsmouth, explains in his essay “Executive” in The Oxford Handbook of the Indian Constitution, “In effect, he (Rau) proposed a State version of Presidential elections along with similar rules of impeachment. The Patel-led Provincial Constitution Committee disagreed. Indirect elections, the members said, were insufficiently representative. They favoured direct elections. ‘The dignity of the office’ demanded nothing less, Patel argued.”
According to Dam, when the committee’s report on provincial constitutions was debated in the Constituent Assembly in July 1947, members broadly supported the idea of directly elected Governors. However, two years later, when the question of the Governor’s appointment returned to the Assembly, it became clear that the Drafting Committee under Dr B.R. Ambedkar had “little faith in popular Governors.” By this stage, most members who had earlier favoured an elected Governor now supported the model of a Governor appointed by the President.
Risk of two centres of power
It was rightly thought and reasoned that an elected Governor would require vesting him with real executive power, which in the presence of an elected Chief Minister would cause unending conflict between the two. "Fear of gubernatorial intrusion agitated some members. Popularly elected Governors with authority to intervene in the everyday affairs of States may breed instability, they argued. Backed by popular mandate, a Governor could claim greater representative authority than the Chief Minister", writes Dam.
A reading of the Constituent Assembly debates makes it clear that members valued the office of the Governor, but were equally wary of creating dual or competing power centres in the States. After extensive discussion, they concluded that the Governor should be appointed by the President and function as a constitutional link between the Centre and the States.
In a system with an unitary emphasis, a governor’s job is not straightforward
India’s federalism has always carried strong unitary features—from the Centre’s emergency powers to the all-India services. In this scheme, it was logical for the Governor to remain accountable to the Centre. What was expected, however, was that despite being a Central appointee, the Governor would place allegiance to the Constitution above loyalty to political masters.
After Independence, the Governor’s office was frequently mired in allegations of power misuse. L.P. Singh, who served as Governor of multiple States in Soli Sorabjee's edited book titled 'The Governor, Sage or Saboteur', writes that the Governor’s office had undergone "devaluation and even debasement”. Indeed, the devaluation has gone to the level that they are merely seen as "agents of the central government".
H.M. Seervai, in his book Constitutional Law of India, critiques the difficulties in ensuring the Governors’ independent functioning. He writes: “As the President acts on the advice of his Ministry, it may be contended that if the Governor takes action contrary to the policy of the Union Ministry, he would risk being removed from his post as Governor, and therefore he is likely to follow the advice of the Union Ministry.”
Views are personal and do not represent the stand of this publication.
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