Acrimoniously juxtaposed political dispensations ruling the States and the Centre at the same time tend to stretch the Constitutional strings binding the federal structure of India, with the office of Governor becoming its epicentre.
One of the oft repeated irritants that triggers debates is the question of Constitutional propriety of a Governor seeking reports directly from the Chief Secretary or Director General of Police. Another moot point that agitates the elected governments of the State is the issue of President, in whose name the executive authority of the Union is exercised, seeking direct reports from the State Chief Secretary or the State Police Chief in certain circumstances.
Article 1 of the Constitution of India describes the Republic of India as a Union and not Federation. The chairman of the Drafting Committee, Dr. B.R. Ambedkar, clarified that “the federation is a union because it is indestructible. Though the country and the people can be divided into different states for convenience of administration, the country is one integral whole, it’s people a single people living under a single imperium derived from a single source.”
A Governor is appointed under article 153 of the Constitution of India. Article 154 further lays down that 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 the Constitution. Governor is appointed by the President of India, and holds office during the pleasure of the President. Therefore, Governor holds a dual position, firstly, that of head of state with all executive powers vested in him; and secondly, as an agent of the Centre.
Article 159 lays down that the Governor will subscribe to an oath or affirmation in the name of God or otherwise, to the effect that he will to the best of his ability preserve, protect and defend the Constitution and the law; and that he will devote myself to the service and well-being of the people of the State.
Article 163 lays down there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, “except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion”. The article further lays down that if any question arises whether any matter is or is not a matter in which the Governor is required to act in his own discretion, the decision of the Governor in his discretion “shall be final”, and the validity of anything done by the Governor “shall not be called in question” on the ground that he ought or ought not to have acted in his own discretion.
Article 355 lays down that it is the duty of the Union to protect States against external aggression and internal disturbance; and to ensure that the government of every State is carried on in accordance with the provisions of the Constitution. Article 356 further lays down that the Governor has to send a report to the President in case of failure of constitutional machinery in the state. In any such situation, it is understandable for the Governor to duly inform the Centre with independent, direct and reliable inputs.
Article 256 lays down that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to giving of such directions to a State as may appear to the government of India to be necessary for that purpose. The Governor is obviously duty-bound to send a report to the Union in case of non-compliance of the constitutional mandate by a State government.
Article 257 further lays down that the executive power of every State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union. The Union can give directions to a State as may be necessary for that purpose. The Union can give directions to a state for construction and maintenance of means of communication, protection of the railways, etc. in certain cases. In any such situation, it is understandable for the Governor use his constitutional authority to exercise his own discretion and inform the Centre on the strength of independent and correct inputs to his satisfaction, as per the requirement of Article 356, that the government of the State cannot be carried on in accordance with the provisions of the Constitution.
Article 164 of the Constitution of India empowers the Governor to appoint the Chief Minister. If there is no political party commanding a clear majority in the Legislative Assembly, the Governor ay exercise his discretion in the appointment of Chief Minister according to his personal assessment at that time.
Under Article 200, the Governor may act in reserving a Bill for the consideration of the President irrespective of any advice from the President. In such matters, the Governor has to discharge his duties to the best of his judgment and pursue such course which is not detrimental to the State.
Under Article 161, the Governor has power to grant pardons, reprieves, respites and remissions of punishment etc. of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.
Article 217 lays down that the President of India shall appoint every Judge of the High Court of the State in consultation with the Governor of that State.
Similarly, the President of India, in whose name the executive power of the Union is exercised, seeking direct reports from the State Chief Secretary or the State Police Chief in certain circumstances can also not be questioned. If a Governor, who is the agent of the President, can in certain cases seek independent, responsible and credible information; the President/ Union of India, the principal whose agent the Governor is, is also entitled to exercise that authority as a logical corollary, particularly in respect of calling-over and seeking reports from the officers of All India Service, who are the appointees of the President of India.
In view of the Constitutional mandate, the propriety of a Governor seeking reports directly from the Chief Secretary or Director General of Police in certain cases; and further, the President of India, in whose name the executive power of the Union is exercised, seeking direct reports from the State Chief Secretary or the State Police Chief in certain circumstances can not be questioned.
Intellectual integrity must be the inherent hallmark of functioning of high level Constitutional functionaries in a democracy. The Constitutional mandate lays down the general rules of acting upon the aid and advice of the Council of Ministers headed by the Chief Minister; but it also lays down the circumstances warranting invocation of exceptions when Governor can act on his decision. The decision of the Governor to proceed in his own discretion in certain matters, which is final rests upon the realm of conscience.
*The Author, Sarvesh Kaushal, is a former IAS officer, who worked as Chief Secretary to Government of Punjab (India). He holds postgraduate degrees in History and Economics, besides that of Bachelor of Laws.
Tags: IAS, Punjab, sarvesh, Sarvesh Kaushal
Sarvesh Kaushal 
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