Making sense of Turf war between governors and state governments

Confrontations between state governments and governors escalated after Narendra Modi began his second tenure as prime minister in 2019.
Image used for illustrative purposes. (Express illustrations | Soumyadip Sinha)
Image used for illustrative purposes. (Express illustrations | Soumyadip Sinha)

CHENNAI: Fostering Centre-state harmony was what the framers of the Constitution had in mind when they created the post of governor as the titular head representing the President in each state. But in these days of competitive politics, the post is no longer seen as a sinecure by its occupants in non-BJP ruled states. They tend to get adversarial, perhaps taking a leaf out of the then West Bengal governor Jagdeep Dhankhar's book, who fought pitched battles with Chief Minister Mamata Banerjee and was rewarded with the high position of national Vice President. Strong Supreme Court observations like that latest on Kerala reappointing a vice-chancellor of a university, where it ruled that the governor cannot merely rubber-stamp an action taken elsewhere or simply endorse or ratify the decision of someone else (the CM) lends power to the position. But while doing due diligence, governors can't sit on legislation indefinitely either.

By design or otherwise, Punjab, Kerala and Tamil Nadu knocked on the Supreme Court's door around the same time complaining about pending bills, some as old as three years, drawing sharp comments from Chief Justice of India D Y Chandrachud. When governors subsequently cleared a few and pushed the others upstairs to the President for assent barely days before the hearings, they drew further adverse comments from the bench. The court now intends to frame guidelines for sending bills to the President. While judicial intervention does quicken the pace of gubernatorial action, whether or not it would be able to unclog the system for good remains to be seen.

Why conflicts

Governors are appointed by the President on the advice of the Central government. Most of those appointed as governors are politicians rewarded for their services to the ruling party or bureaucrats or retired judges who are in sync with the party's ideology. They apparently see themselves as missionaries and force multipliers to make the ground fertile for the party's worldview. The skill sets of some of them include using Constitutional loopholes to stymie state governments.

Confrontations between state governments and governors escalated after Narendra Modi began his second tenure as prime minister in 2019. Governments in West Bengal, Tamil Nadu, Telangana, Kerala and Punjab were particularly upset as their governors took inordinately long to accord assent to bills passed by their legislative assemblies. Governors, of course, have their own reasoning, but the Supreme Court didn't see any merit in the hold-up.

In the past, academicians and some apolitical thinkers adorned the post with remarkable grace but such instances were few and far between.

Constitutional framework

As per Article 153 of the Constitution, each state must have a governor appointed by the President. While the governor is the constitutional head of the state, they are expected to act on the advice of the council of ministers. However, governors can exercise independent authority in certain situations, such as matters related to the dissolution of the state assembly or the imposition of the President's rule.

Recent conflicts

In Tamil Nadu, ever since the death of former chief minister J Jayalalithaa, successive governors Vidyasagar Rao, Banwarilal Purohit and R N Ravi have been accused of exceeding their constitutional brief. While Vidyasagar Rao left Tamil Nadu within a year without much controversy except for a few questionable decisions, Purohit and Ravi have been openly adversarial. Interestingly, the term of K Rosaiah as TN governor till August 30, 2016, went off peacefully perhaps because he was a seasoned politician and a former Congress chief minister from Andhra Pradesh.

Governor Ravi, in particular, has been accused of articulating political views in line with the BJP and stonewalling bills. At frequent intervals, he has offered controversial opinions. On one occasion, he said withholding assent to a bill would mean it was dead, drawing howls of protest from the ruling DMK and its allies. He was sitting on a bunch of legislation until the Supreme Court cracked its whip.

Similar conflicts were seen in Telangana and Kerala. In West Bengal, Governor C V Ananda Bose's actions were questioned, including the formation of a University Coordination Centre without consulting the state government. The Telangana government moved the SC in March over Governor Tamilisai Soundarajan’s delay in clearing several bills. A month later, the court ruled that governors should either give assent or return the legislation as soon as possible.

The Kerala government in November's first week moved the SC accusing Governor Arif Mohammed Khan of holding on to legislation indefinitely. On November 8, Kerala moved the SC for the second time complaining against Khan's inaction even on legislation on post-Covid public health issues.

The court's verdict on Punjab said governors must act within the four corners of the state legislature without flexing a non-existent veto power over bills. The bench later advised the Kerala governor to read up the Punjab judgment and act accordingly.

Impact of the SC verdict

The SC verdict in the Punjab case also sought to address a grey area in the Constitution. Article 200 specifies three options before the governor after any legislation lands on his desk. He “shall declare” (i) his assent; (ii) withholding assent, or (iii) reserving the bill for the consideration of the President. The term “shall declare” implies that the governor is required to declare the exercise of his powers, the verdict underlined.

The gray area was about exercising the second proviso. While the TN governor contended that withholding assent kills the bill, the verdict said that the second proviso flows from the first one, which stipulates that the governor may “as soon as possible” return the legislation to the assembly for reconsideration. It went on to say that the governor would have no option but to clear a reiterated legislation.

The TN assembly recently re-enacted 10 bills days after the governor said he had withheld assent. Going by the court's order in the Punjab case, the governor had to give his assent immediately. Yet, he sent all 10 to the President, which shocked the bench. What was considered a settled matter in the Punjab verdict—mandatory clearance to reiterated bills to which assent had been withheld earlier—again became an open question. Attorney General for India R Venkataramani said the matter needs reconsideration as assent was withheld without returning the bills to the assembly.

The SC's ruling in the Punjab case said, "The power to make decisions affecting the governance of the State, or as the case may be of the nation essentially lies with the elected arm of the government. The Governor is intended to be a constitutional statesman, guiding the government on matters of constitutional concern."

Forwarding bills to President

The Constitution has clearly defined what all bills can be forwarded to the President, legal experts contend. They include matters that fall under the Concurrent List where the Centre also has jurisdiction. The governor cannot forward every bill to the President. Besides, the SC accepted Kerala's recent request to issue guidelines on referring bills to the President. How long can the President take to decide on the legislation sent to him/her, too, is a gray area.

Resolving Governor-state conflict

Various commissions, including the Sarkaria Commission and the National Commission to Review the Working of the Constitution (NCRWC), recommended ways to prevent conflicts between governors and state governments. The Sarkaria Commission on Centre-state relationships suggested that the Vice President of India, the Speaker of Lok Sabha and the state chief minister be consulted by the prime minister on the governor's selection.

The commission said such consultation will enhance the credibility of the selection process. The person chosen should be a person of eminence in his field of specialisation and hail from outside the state. He should be a detached figure without intense political links, or should not have taken part in politics in the recent past. Besides, he should not be a member of the ruling party.
As far as possible, the governor should enjoy a term of five years. He can be removed before his tenure only on the grounds mentioned in the Constitution or if aspersions are cast on his morality, dignity, constitutional propriety, etc. If he is to be axed, the state government may be informed and consulted.

Most of the NCRWC's suggestions were reiterations of the Sarkaria Commission's recommendations. The Punchhi Commission called for giving a fixed term of five years to the governors and their removal by the process of impeachment (similar to that of the President) by the state legislature. Besides, the governor should have the right to sanction the prosecution of a minister against the advice of the council of ministers, it said.

TN  tussle

  • November 10: SC issues notice to TN governor on a petition filed by state government complaining he was sitting on bills, some as old as three years
  • November 13: TN governor announces he is withholding assent to 10 bills, doesn't return them to the assembly, claims they are dead
  • November 18: TN legislative assembly holds special session, re-enacts all 10 bills
  • November 20: SC questions TN governor for keeping the bills pending for over three years
  • November 23: Supreme Court's verdict in Punjab case says a governor must return the bill to the assembly if he was withholding assent. He has no option but to accord assent if the assembly reiterates the legislation
  • November 28: TN Governor refers bills to the President
  • Supreme Court SC says if the governor need not return the bill to the assembly after withholding assent, it would mean that he can completely stultify the bill. AG says it is still an open question as the governor merely withheld assent, and didn't return bills to the House. SC asks him to try setting up a talks table between the governor and CM to settle the matter

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