The Constituent Assembly – The Debates
The elections to the Constituent Assembly were held in July, 1946. Its first meeting took place on December 9, 1946. The long debate on the Objectives Resolution highlighted the fact that a large section of the Constituent Assembly felt the need for a centralized republic with a strong Centre. Nevertheless, it was willing to accept the scheme of a limited Centre and autonomous units with residuary powers, envisaged in the Objectives Resolution, in order to secure the co-operation of the Muslim League in the task of framing the Constitution for a united India. Dr. B.R. Ambedkar was cheered by the House when he declared that so far as he was personally concerned, he would like to have a strong Centre as envisaged in Government of India Act of 1935. He recognized, however, that “these wishes have no bearing on the situation at all.”
Federal Structure of the Constitution
The Constitution seeks and defines India to be ‘Union of States’ with a federal structure. Although the term ‘federal’ does not appear in the Constitution, it often arose in Constituent Assembly debates. The founding fathers based their logic on pragmatic considerations and wanted the Constitution to be federal if necessary but not necessarily federal. Indian federation, according to experts, approaches most closely to what has been called ‘co-operative federalism’. This new phrase, which had emerged largely after the Second World War, was explained by A.H. Birch as: “the practice of administrative co-operation between general and regional governments, the partial dependence of regional governments upon payments from the general governments, and the fact that general governments, by the use of conditional grants, frequently promote developments in matters which are constitutionally assigned to the regions.” This concept is “a general approach rather than a specific programme and it is characterized by increasing interdependence of federal and regional governments, a development that does not destroy the federal principle. This concept is generally applicable to India.”
The Centre, as also the States, enjoy plenary powers in administrative, legislative and financial fields in their respective spheres. They derive their powers and authority from the Constitution, the supreme law of the land, itself. The Constitution defines the Indian Union as a composite whole, the integrity and sovereignty of which must be maintained by each structural limb of the government.
It includes some special integrated features such as:-
• a single Constitution (excepting Jammu and Kashmir),
• single citizenship,
• a single integrated judicial system, a detailed outlining of structures and processes at the Union and State levels, as well as panchayats and municipalities.
• It has a unique model of All India Services where the Union recruits the members of these Services, but they are placed under various State cadres with responsibility to serve both the State and the Union. This arrangement was made in order to provide administrative cohesion in the federal-union system of governance.
The Constitution of India generates a highly complex notion of a strong federal union. It assigns certain exclusive powers in terms of legislative initiative and executive controls to the Central Government, the exercise of which can have a transforming impact on the polity. But, interestingly, these powers are made subject to varying degrees of federal concurrence, with an in-built constitutional mechanism of checks and balances, and parliamentary accountability. The organic Constitution, as it is, allows re-organization of the States and provision of state-hood to Union Territories. For example, the Parliament has, by virtue of Article 3 of the Constitution, the exclusive power to form federal units. However, any legislative proposal in this regard cannot be introduced without obtaining prior Presidential (i.e., Central Government) sanction, which, in turn, must ascertain the views of the affected States before approving the introduction of such a bill in the Parliament. In practice it is rarely possible for the Parliament to ignore the views of the States. The Central Government, in effect, cannot concede to the demands of regional groups/communities for a separate State unless such a proposal is received from the State(s) in which these groups are currently located.
Indian federalism is known for the “differential loadings” and varied arrangements of power distribution. The Seventh Schedule to the Constitution broadly divides and distributes competences, treating States on an equal basis. Articles 370, 371, 371A-G further modify this generality in order to provide for special arrangements of power distribution between the Central Government and a particular category of States. The purpose of this is to accommodate features of regional and ethnic governance. The Fifth and Sixth Schedules to the Constitution provide for the creation of autonomous councils for tribal and ethnic people. Regional or district autonomous councils so created are supposed to share the legislative, administrative and financial domains of the concerned State.
The Constitution of India empowers the Union, and not the States, to initiate and effect changes in the Constitution. However, many Constitutional provisions cannot be amended unless they are ratified by no less than one-half of the States of the Union. These include the election of the President, the extent of the federal government’s executive powers, Presidential powers to promulgate Ordinances during a Parliamentary recess, organizational powers and the authority of the Supreme Court and the High Courts, distribution of legislative powers among the federal government and the States, the representation of the States in Parliament, and Article 368 relating to the amendment procedure.
As added through the 73rd and 74th Constitutional amendments in 1993, when the provisions of Article 243-243 ZG, already in process in varying degrees in different states, become fully operational, the local body institutions at the district level and below will usher in the third-tier of governance in an effective manner. This will make India a multi-level federation, even if these bodies do not have law enforcement (police) or judicial powers.
Although the Constituent Assembly did not completely lack in championing the cause of State autonomy, the overwhelming majority of its members stood for a powerful Centre. During the British period there was a steady process of centralization in administration and legislation with such relaxation of central control as might appear unavoidable from time to time. This system had the effect of mitigating the evils of separatism and bringing all the different regions within the focus of one common administration. Introduction of the English education and the development of the modern means of communication further strengthened this unifying force. The setting up of the railways was a remarkable event in the history of our country. It linked up distant regions and promoted mobility between them. It was also instrumental in the development of national markets and stimulated the growth of large-scale industries, The political and economic unity, which synchronized with the British rule, was subsequently accompanied by a consciousness of National unity or Nationalism. The emphasis in our liberation movement from its very beginning was on National unity. Thus, the centralizing forces, which were the product of the British administration and the National Movement, largely influenced the nature of the Indian federalism. Besides, there were certain other factors which had an impact upon the framers of the Constitution in preferring strong to a weak Centre. One such factor was ‘common concern or anxiety for the future’. The Constitutionmakers were anxious of any possible repetition of Indian history which was full of fratricidal wars between regions and communities. Any such repetition would inevitably destroy the very basis of Indian Nationality. Loyalties to region, language and religion had deep roots in Indian history, and the possibility of these multifarious loyalties striking a deadly blow at the root of National unity could not be overruled.
Secondly, the idea of welfare state, which found a significant place in the programme of the National Movement, largely contributed to the centralizing tendency in India. The greatest challenge which our National leaders had to confront immediately after the achievement of Independence was poverty. Rapid economic development, equitable distribution of National wealth among all sections of the people, accelerating the pace of industrialization and widening the base of social justice, among others, were urgently required. There was no denying the fact that only a welfare state with centralised authority could effectively undertake the task of National reconstruction. As the welfare state ideal was incorporated in our Constitution, enshrined in the Preamble and the Directive Principles of State Policy, the Constitution makers had no choice but to make the Centre powerful. An essential pre-condition for the successful implementation of the welfare programme was and it was rightly conceived to endow the Centre with effective control over the economic and fiscal fields.
The historical experience of the working of the older federations, like the USA, Australia, Switzerland, etc., also guided the footsteps of the architects of Indian Constitution. They were influenced by the centralization, which was considered a universal phenomenon and was writ large on the face of the Indian federation too.
Finally, the contemporary events had also an inevitable impact on the shaping of Indian federation. The partition of India, the wide-scale communal violence, the influx of millions of displaced persons from Pakistan, the subversive activities of some extremist elements with the intent and purpose of destroying our nascent democracy and, above all, the Pak invasion of Kashmir, brought in their train colossal problems which could be tackled only by a strong Centre.
The above factors weighed with the framers of Indian Constitution in opting for a maximal rather than a minimal federation. The result was the acceptance of a federal pattern which provided for a strong central authority “not only to take care of its own responsibilities but to guide and co-ordinate the activities of the units while allowing the latter, in normal times, to act independently in a designed and by no means insignificant area of government.”
Drafting of the Constitution
The Constituent Assembly, through several expert committees, devised the notion of ‘domain specification’ for distribution of powers. Hierarchical, non-hierarchical and non-centralized distribution of powers were embedded within the federal framework. The aim was to provide the Union an organic linkage with the units to ensure unity of purpose and commonality of interests. The underlying and uncompromising assumption was that the proposed Union had to be indestructible but not the States; their identity can be altered or even obliterated.
While reposing great faith in the working of the parliamentary democracy, the focus was that the power must be exercised responsibly and under legislative sanction and scrutiny. The Constitution, for this purpose, made provisions for ‘consultation,’ which would act as a check to the arbitrary use of certain exclusive powers of the Union. These were in three forms: (i) consultation with the State, a pre-requisite (Article 3); (ii) indirect or designated consent of the upper House of Parliament (i.e., the Council of States, known as the Rajya Sabha) (Article 249); and (iii) majoritarian consent, appertaining to many constitutional provisions, the amendment of which cannot be effected unless approved by not less than one-half the total States of India (Article 368).
The vision of the founding fathers of the Constitution had been that the Constitution should serve as a guiding force for free India to meet her aspirations and at the same time must be flexible, adaptable and amendable to meet the changing and emerging needs of the society.
PROPOSITION OF ‘STRONG CENTRE AND STRONG STATES’
Administrative Reforms Commission (ARC), constituted by the Central Government in 1968 recommendations:-
The ARC, although emphatic on the ‘Strong Union’ concept, laid emphasis on autonomy of States in managing some select areas of governance. ARC’s recommendations, in that context, were based on the principles that:
(1) arrangements for devolution should be such as to allow the States’ resources to correspond more closely to their obligations;
(2) devolution should be in a manner that enables an integrated view of the plan as well as the non- plan needs of both the Union and the States; and
(3) advancement of loans should be related to what the team referred to as ‘the productive principle’.
Rajamannar Committee, on Centre (Union) – State Relations:-
➢ set up by the State Government of Tamil Nadu in 1971.
➢ made a critical analysis of the ‘Strong Centre’ concept.
➢ The Committee strongly favoured the autonomy of States.
➢ It went to the extent of recommending unburdening the Centre in many areas of responsibility and its occupancy in many fields as was the case in many other federations. It touched upon the areas in legislative responsibilities through redistribution of entries in the Seventh Schedule.
➢ Its other recommendations included emphasis on legislative competence for States to amend the Central Laws enacted by the Parliament, mandatory consultations with States with respect to decisions affecting the States’ interests etc.
Critical Analysis:-
The Terms of Reference of the Rajamannar Committee had enjoined it ‘to suggest suitable amendments to the Constitution to secure to the States the utmost autonomy’. The Committee, as the report reveals, did not take note of the peculiar problems which the country was facing preceding to and after Independence. It tried its best to mould the Indian constitution on the American model. The central theme in the Recommendations of the Rajamannar Committee was to eliminate the concept of the legislative supremacy of the Centre and to confer maximum autonomy to the States.
In December 1977, the West Bengal Government published a Memorandum, on Centre-State relations. Its main suggestions included:
✔ replacement of the word ‘Union’ by ‘Federal’;
✔ repeal of Articles 356, 357 and 360; and
✔ mandatory consent of State Government for formation of New States and alteration of area, boundaries or names of the existing States.
During the period of 1970s and 1980s, there was demand from non-Congress state parties for more state/regional autonomy. Therefore, Smt. Indira Gandhi appointed Sarkaria Commission on centre-state relations.
THE FIRST COMMISSION ON CENTRE-STATE RELATIONS
The first Commission in all made 247 recommendations on different areas of Centre-State Relations which were given due and detailed consideration by the Government. Of these 247, 179 recommendations were accepted while some are still under examination.
On the Role of Governor
✔ in order to ensure effective consultation with the State Chief Minister in selection of a person to be appointed as Governor, the procedure of consultation should be prescribed in the Constitution itself by suitably amending Article 155.
✔ the Commission recommended that a permanent Inter-State Council called the Inter-Governmental Council (IGC) should be set up under Article 263.
✔ the local self-governing bodies need to be significantly strengthened both financially and functionally, and recommended enactment of a Parliamentary law uniformly applicable throughout India containing provisions analogous to Articles 172 and 174 of the Constitution. The Union Government accepted the recommendations and more specific provisions have been made in the Constitution through the 73rd and 74th Constitutional Amendment Acts, which confer Constitutional status on Panchayati Raj Institutions as well as Municipalities and District Planning Committees.
OTHER MAJOR RECOMMENDATIONS
✔ that prior consultation with the States, individually and collectively, in respect of overlapping and concurrent jurisdictions, should be adhered to, except in rare and exceptional cases of extreme urgency or emergency, though it may not be necessary to make such consultation a matter of constitutional obligation;
✔ that ordinarily, the Union should occupy only that much field of a concurrent subject on which uniformity of policy and action is essential in the larger interest of the Nation, leaving the rest and the details for action by the States within the broader framework of the policy laid down in the Union law;
✔ Article 356 should be used very sparingly, in extreme cases and only as a matter of last resort; and
✔ the net proceeds of corporation tax may be made permissibly shareable with the States by an appropriate amendment of the Constitution.
THE NEED FOR PUNCHHI COMMISSION ON CENTRE-STATE RELATIONS
✔ the economic globalization and liberalization,
✔ the onset of coalition Government(s) at the Centre, in addition to the States where they had already been in existence,
✔ the Constitutional 73rd and 74th Amendments bringing in the third tier of the government; and
✔ some serious and multi-faceted events affecting the Internal Security (mostly related to terrorism)
✔ In addition, some other issues such as inter-state river water disputes, resource sharing, problems pertaining to execution of mega projects etc., continued to come to the forefront from time to time.
Existing Framework of Centre-State Relations:-
The Constitutional scheme of governance at the Centre and in the States is provided in Part XI (Articles 245 to 263), and Part XII (Articles 264 to 298), with few related provisions on trade and Commerce in Part XIII and on All India Services in Part XIV. Broadly it deals with three types of relations namely:-
• Legislative Relations (Articles 245-255),
• Administrative Relations (Articles 256-263), and
• Financial Relations (Articles 264-293).
The Scheme on legislative relations is largely based on the federal principle of "subsidiarity" under which what can best be administered from the Centre are kept with the Union (Union List) and those which are more of regional or local interest are assigned to the Units (State List) with some items of common concern in what is called in the Concurrent List.
SARKARIA COMMISSION ON CONCURRENT LIST:-
➢ In matters of concurrent or overlapping jurisdiction, a process of mutual consultation and co-operation has to be put in place to achieve co-ordination of policy and action. It must be evolved as a convention or rule of practice rather than a rigid Constitutional requirement.
➢ Ordinarily, the Union should occupy only that much field of a concurrent subject on which uniformity of policy and action is essential in the larger interest of the nation leaving the rest for State action within the broad framework of the policy laid down by the Union Law. Furthermore, whenever the Union proposes to legislate on a matter in the Concurrent List, there should be prior consultation. A resume of the views of the State Governments and the comments of the Inter-State Council should accompany the Bill when it is introduced in Parliament.
➢ Residuary powers (now exclusively with the Union) excepting matters relating to taxation, should be placed in the Concurrent List.
Panchayat List:-
It is too early to consider such a proposal and there are practical difficulties in adopting such a course however desirable it be. The Panchayat governance is yet to get stabilized throughout the country to be able to take legislative functions even in respect of matters relevant to the locality. Capacities have to be built up and resource mobilization at all three levels should bear reasonable relation to functional responsibilities.
Representation of States and Panchayats/Municipalities in the Council of States (Rajya Sabha):-
➢ As pointed out by the Sarkaria Commission, a Resolution under Article 249 which lacks the support of almost two-thirds of the total number of states can possibly get passed with the support of nominated members if it is pushed by the larger states who together can muster support of the majority of the House. This is obviously unfair to the smaller states. Equal representation of states is therefore canvassed by some of the stakeholders which, no doubt, has merit if Rajya Sabha has to be an instrument for the effective expression at the Parliamentary level of view of the states, large and small.. ........................(USA MODEL).
➢ The Sarkaria Commission which examined the issue at length was not in favour of changing the structure of Rajya Sabha in favour of equal representation of States as it found the Upper House not exclusively representing the federal principle excepting in relation to the special powers under Articles 249 and 312.
➢ Sarkaria Commission was in favour of strengthening the special role of the Rajya Sabha as an instrument for effective representation of the view points of the States. It is a matter of re-designing procedures of the House rather than its composition.
Punchhi Commission agrees with the views of Sarkaria and other commissions appointed.
Bills Reserved for President's Consideration:-
✗ Under Article 200, there are four courses open to a Governor to whom a Bill passed by the State Legislature is presented for assent. The Governor assents, or withholds assent, or reserves the Bill for the consideration of the President, or returns the Bill (if not a Money Bill) for reconsideration, with his message. He is supposed to act "as soon as possible after the presentation" of the Bill. The Governor's action in this regard has been held to be non-justifiable (Hoechst Pharmaceuticals Ltd. and Ors.Vs. State of Bihar and Ors. [AIR 1983 S.C. 1019]; Bharat Sevashram Sangh and Ors. Vs. State of Gujarat and Ors. [AIR 1987 S.C. 494]).
✗ The President under Article 201 shall either assent to the Bill or withhold his assent. There is no compulsion that the President should "act as soon as possible after presentation" as is provided in Article 200 with the result the President may kill the Bill by not taking a decision sometimes for the entire duration of the State Legislature! This naturally generates a lot of friction in Centre-State relations. Interestingly, Article 201 puts a time limit on the State Legislature (limit of six months) to reconsider a Bill returned by the President, if the President refers back the Bill with his message for the House to again pass it with or without amendment. In the absence of any time limit for the President to make a decision on reserved Bills, it is contended that there is scope for abuse of discretion based on political considerations particularly when the ruling party in the State concerned is different from that ruling the Union. This is said to be an unwarranted invasion of legislative power of the State by the Union Executive.
✗ Allowing the democratic will of the State Legislature to be thwarted by Executive fiat isquestionable in the context of 'basic features' of the Constitution. Therefore the President should be able to decide consenting or withholding consent in reasonable time to be communicated to the State. In the Commission's view, the period of six months prescribed in Article 201 for State Legislature to act when the Bill is returned by the President can be made applicable for the President also to decide on assenting or withholding assent to a Bill reserved for consideration of the President.
✗ If the President, for any reason, is unable to give his assent, it may be desirable for the President to make a reference to the Supreme Court under Article 143 for an opinion before finally making up his mind on the issue. This will avoid allegations of bias while securing the dignity and authority of the House. Again this can be accomplished as a matter of practice or convention rather than through amendment of the Constitution.
Treaty Making Power, International Law and Legislative Relations:-
✔ An issue which has caused concern among the States in recent times is the impact of the Union executing international treaties and agreements involving matters in the State List. A new dimension to the problem has been added by the Supreme Court declaring [Visakha v. State of Rajasthan (1997) 6 SCC 241] that citizens can seek relief in courts on the basis of international conventions or treaties if the country has ratified them and they are not inconsistent with the law and Constitutional provisions.
✔ Refer page no-50-51, volume-2.
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ROLE OF GOVERNOR AND CENTRE-STATE RELATIONS:-
In the first two decades after Independence, there was supremacy of the Congress Party both at the Centre and the State level. Consequently, the role of the Governor was more symbolic and devoid of much controversy. There was very limited role of the Governor in terms of utilising his discretionary powers. However, this position changed after the 1967 elections, where even though the Congress retained power in the Centre, it lost in eight states. Between 1967 and 1972 there was a downfall of more than two dozen ministries giving rise to opportunistic alliances and political defections. As a result, the Governor's role became important as he had to balance the political considerations between the Centre and State and be as impartial as possible. When the Chief Ministers belonged to the Opposition, the Governor was considered the Centre's agent and when there was a coalition government, the Chief Minister's position was rendered rather ineffectual vis-à-vis the Governor. As a result, the Governor started playing a stubborn role, which gave birth to debatable issues concerning the constitutional powers of the Governor.
The Governor's role thereafter became increasingly controversial with allegations of partiality and lack of objectivity in exercise of the discretionary powers. The part played by some Governors, particularly in recommending President's rule and in reserving State Bills for the consideration of the President, had evoked strong resentment. Frequent removals and transfers of Governors before the end of their tenure have also lowered the prestige of this office. Criticism has also been leveled that the Union Government utilises the Governors for its own political ends. Many Governors, looking forward to further office under the Union or active role in politics after their tenure, came to regard themselves as agents of the Union. The Governor thus became a major issue affecting the equation between the Centre and the States.
The Constituent Assembly discussed the extent of discretionary powers to be allowed to the Governor. Following the decision to have a nominated Governor, references in the various Articles of the Draft Constitution relating to the exercise of specified functions by the Governor 'in his discretion' were deleted. The only explicit provisions retained were those relating to Tribal Areas in Assam where the administration was made a Central responsibility. The Governor as agent of the Central Government during the transitional period could act independently of his Council of Ministers.
The nature and scope of the duties of the Chief Minister and the corresponding rights and powers of the Governor are to be understood in the context of their respective roles and responsibilities under a Cabinet system of government as adopted in our Constitution. Under this system, the Governor as Constitutional head of the State has "a right to be consulted, to warn and encourage" and his role is overwhelmingly that of "a friend, philosopher and guide" to his Council of Ministers. Harmoniously with this role, the Governor also functions as a sentinel of the Constitution and a live link with the Union. The rationale of Article 167 is that by affording access to necessary information relating to the administration of the affairs of the State and the legislative proposals, it enables the Governor to discharge effectively this multi-faceted role.
The options available to the Governor under Article 167 give him persuasive and not dictatorial powers to override or veto the decisions or proposals of his Council of Ministers relating to the administration of the affairs of the State. At best, "they are powers of giving advice or counselling reflection or the need for caution and they are powers which may be used to build bridges between the Government and opposition". The efficacy of this advisory role of the Governor depends, in no small measure, on the respect which the incumbent of the office inspires for his wisdom and integrity in the mind of his Chief Minister and Ministers, in particular, and the legislature and the public, in general.
The Governor does not exercise the executive functions individually or personally. The State Government at various levels takes executive action in the name of the Governor in accordance with the rules of business framed under Article 166(3). Hence, it is the State Government and not the Governor who may sue or be sued in respect of any action taken in the exercise and performance of the powers and duties of his office [Articles 361, 299(2) and 300].
The Governor enjoys the same privileges as the President does under Article 361 and he stands, in this respect, on the same footing. Article 361 states that neither the President nor the Governor can be sued for executive actions of the Government. The reason is that neither the President nor the Governor exercises the executive functions individually or personally.
The Governor is not answerable to any court for the exercise and the performance of the powers and duties of his office, or for 'any act done or purporting to be done by him' in the exercise and performance of those duties. The words 'purporting to be done by him' are of very wide import, and even though, the act is outside the scope of his powers, so long it is professed to be done in pursuance of the Constitution, the Governor will be protected.
Lack of bona-fide vitiates executive action, but due to the operation of Article 361 the Governor is not personally responsible. Even where the Governor's bonafide is in question while exercising his discretionary powers, such as appointment and dismissal of Chief Minister, he cannot be called to enter upon defense. The Madras High Court had held that a combined reading of Articles 154, 163 and 361 would show that the immunity against answerability to any Court is regarding functions exercised by the Governor qua Governor and those functions in respect of which he acts on the advice of the Council of Ministers or in his discretion.
In the recent case of Rameshwar Prasad, Chief Justice Sabharwal, while stating the majority opinion held:
➢ The immunity granted to the Governor under Article 361(1) does not affect the power of the Court to judicially scrutinize the attack made to the proclamation issued under Article 361(1) of the Constitution of India on the ground of mala fides or it being ultra vires. It would be for the Government to satisfy the court and adequately meet such ground of challenge. A mala fide act is wholly outside the scope of the power and has no existence in the eyes of law. Even, the expression "purporting to be done" in Article 361(1) does not cover acts which are mala fide or ultra vires and, thus, the Government supporting the proclamation under Article 361(1) shall have to meet the challenge.
➢ The personal immunity from answerability provided in Article 361(1) does not bar the challenge that may be made to their actions. Under law, such actions including those actions where the challenge may be based on the allegations of mala fides are required to be defended by Union of India or the State, as the case may be. Even in cases where the personal mala fides are alleged and established, it would not be open to the Governments to urge that the same cannot be satisfactorily answered because of the immunity granted. In such an eventuality, it is for the respondent defending the action to satisfy the Court either on the basis of the material on record or even filing the affidavit of the person against whom such allegation of personal mala fides are made. Article 361(1) does not bar filing of an affidavit if one wants to file on his own. The bar is only against the power of the Court to issue notice or making the President or the Governor answerable. In view of the bar, the Court cannot issue direction to President or Governor for even filing of affidavit to assist the Court.
In a very limited field, however, the Governor may exercise certain functions in his discretion, as provided in Article 163(1). The first part of Article 163(1) requires the Governor to act on the advice of his Council of Ministers. There is, however, an exception in the latter part of the clause in regard to matters where he is by or under the Constitution required to function in his discretion. The expression "required" signifies that the Governor can exercise his discretionary powers only if there is a compelling necessity to do so. It has been held that the expression "by or under the Constitution" means that the necessity to exercise such powers may arise from any express provision of the Constitution or by necessary implication. We would like to add that such necessity may also arise from rules and orders made "under" the Constitution."
Thus, the scope of discretionary powers as provided in the exception in clause (1) and in clause (2) of Article 163 has been limited by the clear language of the two clauses. It is an accepted principle that in a parliamentary democracy with a responsible form of government, the powers of the Governor as Constitutional or formal head of the State should not be enlarged at the cost of the real executive, viz. the Council of Ministers. The scope of discretionary powers has to be strictly construed, effectively dispelling the apprehension, if any, that the area for the exercise of discretion covers all or any of the functions to be exercised by the Governor under the Constitution. In other words, Article 163 does not give the Governor a general discretionary power to act against or without the advice of his Council of Ministers. The area for the exercise of his discretion is limited. Even this limited area, his choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution.
The Court in Rameshwar Prasad case affirmed the following views of the Sarkaria Commission that the Governor needs to discharge "dual responsibility" to the Union and the State. Further, most of the safeguards as regards the working of the Governor will be such as cannot be reduced to a set of precise rules of procedure or practice. This is so because of the very nature of the office and the role of the Governor. The safeguards have mostly to be in the nature of conventions and practices, to be understood in their proper perspective and faithfully adhered to, not only by the Union and the State Governments but also by the political parties.
Appointment and Removal of Governors:-
The Sarkaria Commission recommended that a person to be appointed as a Governor should satisfy the following criteria:-
1. He should be eminent in some walk of life.
2. He should be a person from outside the State.
3. He should be a detached figure and not too intimately connected with the local politics of the State; and
4. He should be a person who has not taken too great a part in politics generally and particularly in the recent past.
These recommendations were also reiterated by the Supreme Court in the Rameshwar Prasad case.
The words and phrases like "eminent", "detached figure", "not taken active part in politics" are susceptible to varying interpretations and parties in power at the Centre seem to have given scant attention to such criteria. The result has been politicization of Governorship and sometimes people unworthy of holding such high Constitutional positions are getting appointed. This has led to some parties demanding the abolition of the office itself and public demonstration against some Governors in some States. This trend not only undermines Constitutional governance but also leads to unhealthy developments in Centre-State relations.
The Punchhi Commission is of the view that the Central Government should adopt strict guidelines as recommended in the Sarkaria report and follow its mandate in letter and spirit lest appointments to the high Constitutional office should become a constant irritant in Centre-State relations and sometimes embarrassment to the Government itself.
Governors should be given a fixed tenure of five years and their removal should not be at the sweet will of the Government at the Centre. The phrase "during the pleasure of the President" in Article 156(i) should be substituted by an appropriate procedure under which a Governor who is to be reprimanded or removed for whatever reasons is given an opportunity to defend his position and the decision is taken in a fair and dignified manner befitting a Constitutional office.
It might be pertinent to recall here that the Sarkaria Commission had called for a consultation process while appointing the Governor. This included consultation with the Chief Minister of the concerned state and the Commission recommended amending Article 155 for giving effect to this recommendation.
Various stakeholders in their comments on this issue to the Centre State Commission have stressed on the need to prescribe qualifications for the appointment of the Governor in terms of the Sarkaria Commission and we are of the view that this would be an important and essential improvement to the existing situation.
The National Commission to Review the Working of the Constitution (NCRWC), in its consultation paper, went beyond the Sarkaria Commission's recommendations and suggested that Article 155 and 156 be amended and the appointment of the Governor should be entrusted to a committee comprising the Prime Minister of India, Union Minister for Home Affairs, Speaker of the Lok Sabha and the Chief Minister of the concerned State. It also suggested that the Vice-President also could be involved in the process. It opined that the composition of the committee is a matter of detail, which can always be settled once the principal idea is accepted. It observed that this would make the entire process a transparent and unambiguous one.
The Commission would recommend the following amendments to Article 157 of the Constitution to ensure the independence and dignity of the office:
(i) The Governor should, in the opinion of the President, be an eminent person;
(ii) The Governor must be a person from outside the concerned State;
(iii) The Governor should be a detached person and not too intimately connected with the local politics of the State. Accordingly, the Governor must not have participated in active politics at the Centre or State or local level for at least a couple of years before his appointment.
The Sarkaria Commission recommended that the Governors' tenure of office of five years in a State should not be disturbed except very rarely and that too for some extremely compelling reason. A Governor who does not belongs to that State takes time to get acquainted with the problems and aspirations of the people. The ever-present possibility of the tenure being terminated before the full term of 5 years, can create considerable insecurity in the mind of the Governor and impair his capacity to withstand pressures, resist extraneous influences and act impartially in the discharge of his discretionary functions. However, the Sarkaria Commission declined to prescribe a procedure for removal of the Governor.
The National Commission to Review the Working of the Constitution,has, on the lines of the Sarkaria Commission, recommended that the Governor's tenure of office must be guaranteed and should not be disturbed except for extremely compelling reasons and if any action is to be taken against him he must be given a reasonable opportunity for showing cause against the grounds on which he is sought to be removed. In case of such termination or resignation by the Governor, the Government should lay before both the Houses of Parliament a statement explaining the circumstances leading to such removal or resignation, as the case may be.
This Commission is of the view that politicization of the office of Governor to an extent where his appointment is based on whims and fancies of the Central Government is not in keeping with the spirit of the Constitution. Accordingly, the following recommendations are made:-
(i) The tenure of office of the Governor must be fixed, say for a period of 5 years;
(ii) The phrase "during the pleasure of the President" may be deleted from Article 156 of the Constitution. Even if the Governor is denied a fixed tenure of five years, his removal cannot be at the sweet will of the Central government. It must be for a reason which has relation to the discharge of functions of the office of a Governor;
(iii) A provision may be made for the impeachment of the Governor by the State Legislature on the same lines as the impeachment of the President by the Parliament. (See Article 61 of the Constitution.) Such impeachment can be only in relation to the discharge of functions of the office of a Governor or violations of the principles laid down in the Constitution. Where there is no Upper House of Legislature in any State, appropriate changes may have to be made in the proposed Article since Article 61 is premised upon the existence of two Houses of Parliament.
The Sarkaria Commission had recommended that as a matter of convention, the Governor, on demitting his office, should not be eligible for any other appointment or office of profit under the Union or a State Government except for a second term as Governor, or election as Vice-President or President of India. Such a convention should also require that after quitting or laying down his office, the Governor shall not return to active partisan politics. This recommendation is reiterated and must be brought into effect by way of a constitutional amendment.
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