The origin of the office of the Governor in India can be traced back to the Government of India Act of 1858, where the Governor’s role was to act as a representative of the people under the supervision of the Viceroy. This office continued to exist under the Government of India Act of 1935, which introduced provincial autonomy. The Governor’s office operated independently from the elected representatives and had discretionary powers. However, the Congress Government obtained assurance from the Viceroy that this office would not interfere with the functioning of the legislatures through its granted powers. When India gained independence, the framers of our Constitution believed that such an office should be retained, but without any discretionary powers. Thus, the ongoing struggle between the Union and State Governments over the role of Governors in India began. The recent incident of the Hon’ble Governor of Tamil Nadu deviating from the prepared speech adds to this ongoing debate.
Constitutional Assembly debates
While debating upon whether the office of Governor was required at all, Dr B R Ambedkar remarked, ‘The Drafting Committee felt, as everybody in this House knows, 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 judgment.” Dr Ambedkar elucidates to the assembly that each member believes that the Governor ought not to possess discretionary powers. Subsequently, the assembly extensively deliberated upon the role of the Governor, whether the appointment should be through election or nomination, the allowances granted, and the manner in which decisions were to be made. Ultimately, this discourse culminated in the incorporation of Article 163 into the Indian Constitution.
Article 50(3) of the GOI Act 1935 and Article 163 of the Constitution
Article 163 is mostly derived from Article 50 of the Government of India Act of 1935 with minor modifications. Article 50(3) of the Government of India States that if there is any question regarding whether a matter falls under the discretion or judgment of the Governor as required by the Act, the Governor’s decision in his discretion will be final. Anything done by the Governor cannot be challenged on the grounds that he should or should not have acted in his discretion or exercised his judgment. This provision granted the Governor independent decision-making authority. However, Article 163 of the Constitution eliminates this provision and States that the council of ministers will assist and advise the Governor in the exercise of his functions, except when the Constitution requires him to exercise his functions at his discretion. This contradiction in the Constitution, where aid and advice are required while discretionary powers are allowed, has been a contentious issue since the inception of the Constitution itself.
State Address
Article 176(1) of the Constitution of India mandates that the Governor must deliver a speech to both Houses of the Assembly at the beginning of the first session after each general election and at the start of each year, informing the Legislature about the reasons for its summons. As it is the Governor’s constitutional duty to address the House, the Governor is entitled to certain discretionary powers under the Constitution itself. These powers are derived or implied, allowing the Governor to exercise the constitutional office without necessarily requiring the advice of the Council of Ministers. Since the Governor holds the authority to summon the legislature, the content of the Governor’s speech is the Governor’s responsibility, not the State’s. As the Head of the State, the Governor’s address should strive to be as non-political as possible. While the Governor must follow the advice of the Council of Ministers on administrative matters of the State, the Hon’ble Governor has the discretion to modify the nature of her pre-prepared speech or deviate away from it.
The way forward
The Supreme Court of India, in the case of BP Singhal v. Union of India ((2010) 6 SCC 331), has ruled that the Governor of a State plays a crucial role as a link between the Union Government and the State Government. The Governor is expected to fulfil their various roles in a harmonious manner, understanding the extent and nature of each role. Therefore, it is important to streamline the appointment and functions of the Governor to ensure they remain as political as possible. The Sarkaria Commission has recommended that an apolitical individual should be chosen as a Governor. It is also essential for the constitutional functions of the Governor to be independent of the advice and guidance of the Council of Ministers. Governors should not merely be figureheads but rather serve as the vital bridge between the different units of the federation. The State address should not reflect the views of a political party but rather uphold the essence of democracy itself. Therefore, it is imperative for the Government to exclude politics from constitutional addresses in order to maintain a strong “Federation with a Union of States.” It is imperative that the Office of the Governor shifts away from pre-prepared speeches by political executives and instead focuses on delivering factual information and figures to the House. This approach will prioritise the continuity of governance, irrespective of the individuals in power further strengthening our democracy.
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