Govt vs Raj Bhavan: The role of the governor and powers vested in him

Ram Dulari Sinha, a Congress leader from Bihar, locked horns with the EK Nayanar-led ministry within a month of taking charge as the governor of Kerala.

She demanded the chief minister maintain law and order during the Bharat Bandh on March 15, 1988 and soon issued a statement saying the situation was not satisfactory.

Following the governor's statement, parliamentarians met the president against her. The state Assembly, too, acted against the governor by passing a resolution.

The first communist government — led by EMS Namboodiripad — that had assumed power through the ballot was dismissed based on the then governor's report.

Conflicts between governors and elected governments are new. The present Governor, Arif Mohammed Khan, and the Pinarayi Vijayan government, too, are at loggerheads.

What were such incidents in the past? What are the constitutional powers of the governor? When should the governor use his/her discretionary powers? Here's a quick look into such aspects:

Dismissal of the EMS government
The EMS Namboodiripad-led government was the first communist dispensation to assume power through the ballot. Following the liberation struggle led by the Congress, the then governor Dr B Ramakrishna Rao submitted a report.

The report submitted to the president on July 17, 1959, said that Kerala was facing a constitutional crisis, and the only solution was to invoke Article 356 of the Constitution. The Centre acted accordingly and dismissed the government by invoking Article 356.

The Centre had earlier invoked Article 356 four times to dismiss the governments in various states. However, all these governments were without a simple majority. In Kerala, the EMS government had the simple majority but was dismissed citing the law and order situation.

The Union government later invoked the Article several times to dismiss state governments.

Jothi Venkatachalam vs Baby John
The cordial relationship between the Raj Bhavan and the government often ends in a stalemate over the governor's authority as chancellor of universities. The appointments of vice-chancellors, senate, and syndicate members are often controversial.

Jothi Venkatachalam was the governor during the first EK Nayanar government. She appointed Dr AV Varghese as the vice-chancellor of the University of Kerala without discussing it with the government.

The government had shortlisted three names, Dr AV Varghese, Head of the Department of English, Bentley College in Massachusetts, Dr KI Vasu, pro-vice-chancellor of Cochin University and N Kaleeshwaran, vice-chancellor of Agricultural University.

The governor appointed Dr AV Varghese from the panel submitted to her. However, she did not consult the government before appointing him. The then education minister, Baby John, launched a broadside against the governor in the Assembly.

He suggested a legislature to address the loopholes and drawbacks in appointing vice-chancellors.

Govt against Ram Dulari Sinha
The second Nayanar government, too, locked horns with the governor, Ram Dulari Sinha. The dispute was again over education.

Sinha was inimical towards the government ever since she took charge. The differences snowballed into a major dispute during 1988-89. The differences between the governor and the government over law and order situation gradually spread to other sectors.

The governor returned an ordinance on dismissing the syndicate of Cochin University. The ordinance had amended a law to slash the term of syndicate members by a year from four. The governor's stand was that such a move was not necessary only in the case of Cochin University, and she refused assent.

Sinha created another controversy by nominating a few people who were not on the list submitted by the government. The issue reached the court and the high court made adverse remarks against the governor.

On February 2, 1989, the state Assembly passed a resolution against the governor. Without mentioning the governor's name, the resolution was passed against the chancellor. Incidentally, it was the first time that an Indian state passed a resolution — albeit indirectly — against a governor.

The government's clash with the Raj Bhavan even reached the president. MPs KP Unnikrishnan, Thampan Thomas, E Balanandan, NE Balram, Arangil Sreedharan, MA Baby, and PK Kunjachan met the then president R Venkitaraman and submitted a memorandum against Sinha.

Governor Khan vs Government: Who will blink first?
The current situation is similar to Sinha's tenure as the governor. Governor Arif Mohammed Khan and Chief Minister Pinarayi Vijayan are exchanging barbs. The situation has come to a head with the governor and SFI activists challenging each other on the streets.

The issue now, too, is regarding the governor's powers as the chancellor of universities. The governor has been delaying assent to Bills by forwarding them to the president.

The Bills include the University Laws Amendment Bill (First Amendment), and the University Laws Amendment Bill (Second Amendment) meant to vest the government with the power to select candidates of its choice as vice-chancellors by replacing the governor as the automatic chancellor of universities.

Bills about the government appointing a retired judge as the University Appellate Tribunal, again by replacing the governor, Kerala Lok Ayukta Amendment Bill to dilute the powers of the anti-corruption body, and the Co-operative (Milma) Bill have been forwarded to the president.

Incidentally, it is not known when the president will consider these Bills.

Executive head of the state
Besides being the executive head of the state, the governor is also the representative of the central government. According to the Indian Constitution, each state should have a governor.

Articles 153 to 158 deal with governors.
•Each state should have a governor
•The executive power of the state shall be vested in the governor
•The governor shall be appointed by the president by warrant under his hand and seal
•Any Indian citizen aged 35 or above shall be appointed as the governor
•The governor shall hold office during the pleasure of the president
•The president shall recall the governor
•A governor shall hold office for a term of five years from the date on which he assumes charge, and continue until a successor is appointed
•The governor may, by writing under his hand addressed to the president, resign from his post
•In case of a temporary vacancy, the chief justice will shoulder the responsibilities of the governor
•The governor should not be a member of Parliament or the state legislative Assembly
•If a Parliament/Assembly member is appointed a governor, his membership will cease to exist from the date of taking charge
•The governor shall not hold any other office of profit
•The emoluments and allowances of the governor shall not be diminished during his term
•If the same person is appointed as governor of two or more States, the emoluments and allowances payable to the governor shall be allocated among the states in such proportion as the president may determine
•Before assuming power, the governor-designate should take oath before the chief justice, or in his absence, the senior most judge, and sign the prescribed form
•Article 361 protects the governor from criminal proceedings (both civil and criminal)
•The governor's action executed within his power shall not be questioned in a court of law.

Executive powers
The governor enjoys vast constitutional powers over executive, legislative, judicial, and finance. Additionally, the governor also has several discretionary powers.
•The governor appoints the chief minister
•The governor appoints all other ministers based on the chief minister's advice
•All administrative powers are vested in the governor. Article 163 says, "There shall be a council of Ministers with the chief minister at the head to aid and advise the Governor in the exercise of his functions..."
•Article 356 empowers the governor to recommend the dissolution of the state government in case of a constitutional crisis
•The governor appoints the advocate-general, the State Public Service Commission chairman and other members, the Information Commission chairman, and the State Human Rights Commission chairman.
•The governor is the ex-officio chancellor of almost all universities in the state.

Legislative powers
•The governor is a part of the state Legislative Assembly. He has the power to convene or conclude the Assembly
•The Assembly's first session after the election begins with the governor's address
•A Bill becomes an Act only with the assent of the governor.
•The governor can give an accent, or withhold, or return to the Assembly for reconsideration, or suggest amendments to a Bill.
•If the returned Bill is passed in the Assembly again — with or without incorporating the gubernatorial suggestions — the governor cannot withhold it
•Article 213 empowers the governor to issue ordinances when the Assembly is not in session
•The governor nominates an Anglo-Indian representative to the state Assembly.

Judicial powers
•The president accepts the governor's advice while appointing judges to the high court
•The governor has powers over the appointment, promotion, and other matters about district judges and other judicial officers
•The governor can grant pardons, reprieves, respites, or remissions of punishment or suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the state extends.

Financial powers
•Bills on financial matters could be presented in the Assembly only with the approval of the governor
•Contingency funds are at the disposal of the governor. He can provide advances from the contingency funds to meet urgent unforeseen expenditure
•The government should seek the governor's permission before presenting the Budget
•Amendments on financial matters need the governor's recommendation.

Discretionary powers
The governor normally has limited powers. However, in extraordinary political circumstances, the gubernatorial position gains importance. According to Article 163, the governor can by or under the Constitution exercise his function using his discretion. Such actions will be final and binding.

The governor is not responsible to the Cabinet of ministers while using his discretionary powers. He can report on the government to the president or forward Bills to the president using his discretionary powers.

The Bommai case
Though the Centre dismissing state governments by invoking Article 356 has been questioned in courts of law several times, the most important of them was the 1994 ruling in the SR Bommai case.

The Union government had dismissed the Nagaland government in 1988, the Karnataka government in 1989, and the Meghalaya government in 1991. During the riots that followed the demolition of Babri Masjid, the PV Narasimha Rao government dismissed the BJP dispensations in Rajasthan, Madhya Pradesh, and Himachal Pradesh.

These dismissals were considered while hearing the Bommai case. The Supreme Court found that the dismissals of the Karnataka, Nagaland, and Meghalaya governments were unconstitutional, and nullified the central government's action.

The court clarified that secularism is the hallmark of the Constitution, and any move against it would be unconstitutional.

The Supreme Court suggested certain guidelines for dismissing state government while passing its judgment in the Bommai case. Accordingly, those state governments acting against the basic principles of the Constitution could be dismissed. Whenever a party comes to power at the Centre, it cannot dismiss all governments headed by Opposition parties.

The court can reinstate a government that was dismissed based only on political consideration. Likewise, the president cannot simultaneously dismiss both the Cabinet and the Assembly. Even if the Cabinet is dismissed, the Assembly cannot be dissolved until Parliament ratifies the decision within two months.