Far from the constitutional formality, is the growing politicisation of the post of the Governor and the contestation over its powers. Since coming to power, the BJP, has effectively enhanced the power of the executive by weaponizing the Governor’s office to frustrate the functioning of non-BJP State governments in what is a veritable undermining of federalism. In the Constitutional scheme of affairs, the office of the Governor, being the nominal head of the State, has select executive powers and acts only on the advice of state governments.
The entrenchment of the BJP in the office of the Governor is complete. A confrontational and belligerent Governor is a daily affair in the non-BJP government states, be it Kerala, Tamil Nadu, Delhi, Punjab, West Bengal or any of the other states. Some egregious examples include the Tamil Nadu Governor R. N. Ravi unilaterally dismissing a Minister of the State Government, a decision he withdrew 5 hours later. In Punjab, Governor Banwarilal Poruhit organised an unprecedented meeting with district-level officials on the implementation of various government schemes. In fact, the Governor’s post has even become a post-retirement political carrot for Supreme Court judges, which weds the assault on the independence of the judiciary with the politicisation of the post of the Governor. This is in stark contrast to Governors in BJP-ruled States where there is not a squeak Has anyone heard the Manipur Governor Anusuiya Uikey talk about the breakdown of the constitutional machinery in the state?
The tussle between political parties playing themselves out as stand-offs between the state government and the governor is not new. The country has witnessed many a misadventure in this front at the hands of the Congress, but the present situation is unprecedented. There is a complete takeover of the office of the Governors by the BJP today accompanied by the apparent erosion of constitutional morality and propriety. Governors are launching daily attacks on non-BJP governments making a mockery of the democratic norms and constitutional limitations on the role of the Governor.
Perhaps it is useful to recall the role envisaged for Governors by the framers of the Constitution. The Constituent Assembly debates makes it unambiguously clear the office of the Governor was meant to be ceremonial so as to ensure that there was no duality and duplicity of power centres in the states. The Governors were envisaged to be impartial constitutional heads who would "throw oil over troubled waters”, who would be "a harmonious element in the constitution", a link between the State and the Union governments.
Interestingly, there was a proposal for the Governor to be elected by direct votes, but this was shot down. G. Durgabai while speaking at the Constituent Assembly, succinctly stated the rationale behind the rejection of the proposal of an elected Governor. She said: “We wanted to introduce the Governor in our Constitution because we thought that an element of harmony would be there and that institution would bring about some sort of understanding and harmony between the conflicting groups of people, if really the Governor is conscious of his duties and he functions well. It is only for this purpose this is proposed, the governing idea is to place the Governor above party politics, above factions and not to subject him to the party affairs”.
The fear that governors would interfere with the governance of the states was not lost on the framers of the Constitution. K. Sen said, “The question is whether by interfering, the Governor would be upholding the democratic idea or subverting it. It would really be a surrender of democracy. We have decided that the Governor should be a constitutional head. He would be the person really to lubricate the machinery and to see to it that all the wheels are going well by reason not of his interference, but his friendly intervention.”
Ambedkar while speaking in the Constituent Assembly clarified that the powers conferred on the Governor would be “limited, so nominal” and “his position so ornamental” that “… the Governor is not to have any kind of functions-to use a familiar phraseology, “no functions which he is required to discharge either in his discretion or in his individual judgment.” Ambedkar continued, “According to the principles of the new Constitution he is required to follow the advice of his Ministry in all matters”. Ambedkar was emphatic that the Governor is not a representative of any party but ought to be the representative of the people as a whole of the State.
Yet today Governors display allegiance to the BJP and the Sangh Parivar and its ideology rather than to the Constitution. One common tool that these Governors have employed is withholding assent to Bills duly passed by the State Legislatures thereby scuttling governance and policy initiatives of the non-BJP governments. This demonstration of extreme partisanship by the Governors have finally led to Opposition-led State governments of Punjab, Tamil Nadu, Kerala and even Delhi (against the Lieutenant Governor) approaching the Supreme Court for relief.
Recently in November, the Supreme Court has passed a judgement in case filed by the Punjab government. In this case filed by the AAP-led Punjab State government (State of Punjab vs Principal Secretary to the Governor of Punjab and Another – W. P. No. 1224/2023), against the actions of the incumbent Governor Banwarilal Purohit of withholding assent to four Bills which were passed by the Vidhan Sabha, the Supreme Court has essentially declared that Governors do not have the power to hold onto a Bill passed by the Legislature, and if the Governor decides to withdraw assent to the Bill, then he ought to return the Bill to the Legislature for reconsideration. In arriving at this conclusion, the Supreme Court observed that the Governor cannot exercise its powers to thwart the normal course of law-making by the State Legislatures. It is also observed that if the Governor is allowed to withhold bills passed by the State Legislatures without returning them for reconsideration, then that would allow the Governor “as the unelected Head of State” to be in a position to “virtually veto the functioning of the legislative domain by a duly elected legislature by simply declaring that assent is withheld without any further recourse”, and this would be contrary to fundamental principles of a constitutional democracy based on a Parliamentary pattern of governance.
Of course, these are not the first cases alleging interference by the Governors that have reached the Supreme Court. The Supreme Court in its judgment by a nine-judge Bench in S. R. Bommai Vs Union of India had dealt with the arbitrary dismissal of State governments, on the reports of pliable Governors under Article 356, by hostile Union government. The Supreme Court, took strong exception to dismissal of duly elected State governments on the basis of subjective reports by the Governors, which failed to discharge their actions in keeping with the posts of high constitutional functionaries that they held. The Supreme Court noted that the founding fathers deliberately avoided election to the office of the Governor to insulate the office from politicisation, and the office of the Governor, therefore, is intended to ensure protection and sustenance of the constitutional process of the working of the Constitution by the elected executive.
As such despite the November judgment of the Supreme Court being a rap on the knuckles of the Modi government, it remains to be seen if there is any toning down of the attacks by the Governors. The Supreme Court, except for an occasional exception, has failed to hold the Modi government accountable and its December judgment on the abrogation of Article 370 is a stark reminder of this failure of the Supreme Court. Given this failure, we will have to wait for the outcome of several pending cases by non-BJP State Governments against the illegal actions of the Governors to see whether the Supreme Court opts to change course. In the meanwhile, Governors in Opposition-led States, on a daily basis, keep proving right these words of G. Kher in the Constituent Assembly: “a Governor can do a great deal of good if he is a good Governor and he can do a great deal of mischief, if he is a bad Governor, in spite of the very little power given to him under the Constitution”.
