Context: Recently, the Supreme Court of India decided to consider a petition requesting a redefinition of the constitutional immunity granted to state Governors. This decision came after a contractual employee from the West Bengal Raj Bhavan filed a complaint against the Governor, accusing him of sexual harassment. The case has been taken up by a three-judge bench of the Supreme Court.

Petition's Objectives

• The petitioner contends that victims should not be left without recourse, and waiting for the Governor to exit office could delay justice and impact the trial.

• Request for Specific Guidelines: The plea seeks the formulation of clear guidelines regarding the extent of immunity for Governors in criminal cases.

• Demand for Police Investigation: The petitioner calls for a comprehensive investigation by the West Bengal Police into the allegations of sexual harassment.

• Seeking Protection and Compensation: The plea requests protection for the petitioner and her family, and compensation from the government for the loss of reputation and dignity due to the failure of state mechanisms to safeguard her identity.

• Challenge to Absolute Immunity: The petition argues against the absolute immunity under Article 361, asserting that it should not protect illegal acts or violations of fundamental rights. It suggests that this immunity should not hinder police investigations or the identification of the perpetrator in complaints or FIRs.

About Governor of a State

• The Union Government appoints the Governor for each state, making the Governor both the nominal/constitutional head and an agent of the Centre. As the chief executive head, the Governor plays a crucial role in the state executive. 

• Selected by the federal government, the Governor's name is used for all executive decisions, positioning them as the de jure leader of the state government. 

• However, any decision must be made in consultation with the Chief Minister-led council of ministers, which holds the de facto executive power at the state level due to being elected by the people.

• Components: Part VI of the Constitution of India deals with the state executive, which includes the Governor, Chief Minister, Council of Ministers, and Advocate-General of the State.

Role and Position

• Nominal Head: The Governor is the nominal head at the state level.

• Constitutional Articles: Articles 153 to 167 cover the State Executive, designating the Governor as the titular head and the Chief Minister, who heads the Council of Ministers, as the real head.

• Dual Role: The Governor also acts as an agent of the central government, serving a dual role.

Appointment:

• Process: The Governor is appointed by the President under their hand and seal.

• Supreme Court Ruling (1979): The office of the Governor is an independent constitutional office, not an employment under the central government and is not subordinate to it.

• Canadian Model: India adopted the Canadian Model where the Governor of a province (state) is appointed by the Governor-General (Centre).

Oath and Qualifications

• Oath: Administered by the Chief Justice of the concerned High Court.

• Qualifications: The Governor must be a citizen of India and at least 35 years old.

• Conventions: The Governor should not be from the state where they are appointed, and the President is required to consult the Chief Minister of the state before the appointment.

Term of Office

• Duration: The Governor holds office for a term of five years, subject to the pleasure of the President.

• No Grounds for Removal: The Constitution does not specify grounds for the Governor's removal by the President.

• Continuation: The Governor can hold office beyond their term until a successor assumes charge.

Evolution of the Governor’s Role

• GoI Act 1858: Transferred administration responsibility from the East India Company to the British Crown, making the provincial head an agent of the Crown.

• Montague-Chelmsford Reforms (1919): Introduced minor changes to provincial governance with limited responsible government.

• GoI Act, 1935: Granted provincial autonomy, requiring action on the advice of the Council of Ministers.

• Post-1947 Adaptation Order: Made the Governor function based on the aid and advice of the Council of Ministers.

Constitutional Provisions

What does the Constitution say?

• Article 200 of the Constitution lays down that when a Bill, passed by a State Legislature, is presented to the Governor for their assent, they have four alternatives —

• Give Assent: Approve the Bill, making it a law.

• Withhold Assent: Reject the Bill, which means it does not become law.

• Return the Bill: If it’s not a Money Bill, send it back to the State Legislature for reconsideration.

• Reserve the Bill: Set aside the Bill for the President's consideration.

When Does the Governor Act on Advice?

• Advice from the Council of Ministers: Typically, the Governor acts based on the advice of the Council of Ministers. This means the Governor doesn’t usually make decisions independently but follows the recommendations from the government ministers.

• A Supreme Court case (Shamsher Singh case) emphasize that Governors generally act on ministerial advice and only use discretion in exceptional cases.

• Withholding Assent: This might happen if the Bill was proposed by a member of the legislature who is not a Minister, known as a Private Members' Bill. In various case, the Council of Ministers might advise the Governor to withhold assent, effectively blocking the Bill.

• Returning the Bill: If the Bill is returned to the State Legislature for reconsideration, it is always done based on the advice of the Council of Ministers. For instance, if a Bill is not accepted in its original form, the Governor sends it back to be reviewed again.

• The Constitution does not lay down any time limit within which the Governor is required to make a decision.

Challenges Associated with the Office of Governor

• Lack of Consultation: Elected state governments are often not consulted during Governor appointments.

• Partisan Appointments: Politicians and former bureaucrats linked to the ruling party are sometimes appointed as Governors, raising concerns about impartiality.

• High Status Requirement: Article 155 requires that a Governor be appointed from individuals of high public status and eminence, rather than elected.

• Appointment and Removal: Governors are appointed and can be removed by the central government, as the President acts on the advice of the Prime Minister and the Union Council of Ministers. Article 156 states that a Governor holds office "during the pleasure of the President."

• Lack of Clear Procedures: The absence of written grounds or procedures for removing Governors leads to arbitrary dismissals, particularly during changes in political power at the Union level.

• Subjective Recommendations: The Governor's discretionary power to recommend President's Rule under Article 356 may not always be based on objective material, contrary to Ambedkar's hope that such provisions would remain unused.

• Role Ambiguity: The overlap between the Governor's constitutional duty to act on the advice of the council of ministers and their statutory role as chancellor causes conflicts with state governments.

• Political Delays: The Governor has been involved in delays related to the convening and dissolution of the state legislative assembly, impacting political processes.

• No Time Limit: The lack of a set timeframe for withholding assent to bills allows Governors to misuse this power.

• Presidential Consideration: According to Article 200, Governors can reserve certain bills for Presidential consideration, which can further delay legislative action.

• Partisan Bias: Governors have been criticized for partisan behavior in appointing Chief Ministers, especially when no single party has a clear majority, breaking the convention of inviting the largest party to form the government.