Controversial Role of Governors

Context: Recently, the West Bengal Chief Minister has slammed the West Bengal Governor over his letter on post-poll violence.
Key highlights

• The Home Department of the West Bengal government said the Governor's act of making the letter public was violative of all established norms, and disrupts sanctity of such communications.
• The government of West Bengal has observed with dismay and distress that the Governor of West Bengal has suddenly made public with contents that are not consistent with real facts.

Reasons for controversial role of governor

• Range of discretionary powers: The office of the Governor has been involved in several controversies in different states only on account of the liberal and often controversial interpretation of the discretionary power of the Governor.

Against the spirit of Constitutional intent: A review of who have been appointed as Governors would show that they invariably belonged to three distinguished categories:

• Defeated politicians (from the ruling party at the centre); or
• Politicians who need to be 'retired' or sent far away from their home state (also from the ruling party at the centre) or
• Retired 'loyal' bureaucrats

Entry of governors into politics: Many governors at the end of their tenures (or by resigning mid-term) have returned to active politics and become Chief Ministers and Central Ministers.

• Lack of consultation from chief minister over governor’s appointment: Some Chief Ministers in the past have complained that they came to know of the new Governor of their state like other citizens i.e. through the media.

Provisions related to Appointment of Governor

• The governor is neither directly elected by the people nor indirectly elected by a specially constituted electoral college as is the case with the president.
• The governor is appointed by the president by warrant under his hand and seal.
• In 1979, the Supreme Court held that the office of governor is not an employment under the Central government.
• It is an independent constitutional office and is not under the control of or subordinate to the Central government.
• The American model, where the Governor of a state is directly elected, was dropped and the Canadian model, where the governor of a province (state) is appointed by the Governor-General (Centre), was accepted in the Constituent Assembly.

The Constitution lays down only two qualifications for the appointment of a person as a governor which are:

• He should be a citizen of India.
• He should have completed the age of 35 years.
• Conditions of Governor’s Office
• He should not be a member of either House of Parliament or a House of the state legislature.
• He should not hold any other office of profit.
• He is entitled without payment of rent to the use of his official residence.
• He is entitled to such emoluments, allowances and privileges as may be determined by Parliament.

When the same person is appointed as the governor of two or more states, the emoluments and allowances payable to him are shared by the states in such proportion as determined by the president.
Term of Governor’s office

• A governor holds office for a term of five years from the date on which he enters upon his office.
• The Constitution does not lay down any grounds upon which a governor may be removed by the President.
• The Supreme Court held that the pleasure of the President is not justifiable and the governor has no security of tenure and no fixed term of office.
• The President may transfer a Governor appointed to one state to another state for the rest of the term.

Constitutional Position of Governor

• The executive power of the state shall be vested in the governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution (Article 154).
• There shall be a council of ministers with the chief minister as the head to aid and advise the governor in the exercise of his functions, except in so far as he is required to exercise his functions in his discretion (Article 163).
• The council of ministers shall be collectively responsible to the legislative assembly of the state (Article 164).

Power of Governor to act against the will of Chief Minister

• It has been observed in few instances where the Governor can summon the House despite the refusal of the Chief Minister who heads the Cabinet. 
• When the Chief Minister appears to have lost the majority and the legislative members of the House propose a no-confidence motion against the Chief Minister, then the Governor can decide on his or her own on summoning the House.
• The actions of the Governor executed with the use of his discretionary powers can be challenged in the court.