In the early 60s, the DMK party raised a question as to whether the states should have the post of governor. The popular slogan that like a beard was unnecessary for a goat, a governor for a state is also unnecessary.
After the DMK came to power in 1967, the government appointed Justice Rajamannar Commission for recommending necessary changes to the constitution to provide a greater autonomy to the states. The commission did not recommend the abolition for the post of governor. However it recommended that the state government must have its choice in selecting a governor. However, the post of governor has come to stay though it is always perceived that the central government was using the office of the governor either to intimidate or destabilise the popularly elected governments.
Perhaps it will be surprising that under the constitutional scheme , the only post which has least qualification is the post of governor. The Constitution requires that a person who can be appointed a governor of a state must be an Indian citizen and he should have completed 35 years of age. Because of these requirements many a times the ruling parties at centre (be it Congress or BJP) have chosen to send governors to different states some senior leaders of their parties either to reward him with some honour for past service or to get rid of one from the power struggle within the party in a state.
At times, persons with limited knowledge have been appointed to a state. Few years ago, a governor of a state could not administer the oath of office to his council of ministers as he was unfamiliar with English. The case of the border states are much worse. Many a times, retired police officers and army generals were sent to head those states to act as governors.
Article 153 mandates that each state shall have a governor and that he shall be aided and advised by a council of ministers headed by the Chief Minister. Similarly, union territories such as Puducherry will have Administrators also called as Lieutenant Governors according to Article 239. While the President of India is bound by the advice tendered by the Cabinet led by the Prime Minister, the same is not the case in the case of the governor. This ambivalence has led to friction often in states ruled by a political party which is a different one ruling at the Centre. Such governors who were sent on a political mission to strengthen the ruling party of the centre started playing “politics” and were interfering in the affairs of the ruling parties of the states. Though the post of governor was conceived as a titular head of a state and was expected to give his sage advice to the state cabinet in case of President rule, the governors automatically became the actual power wielders.
Using the discretionary powers of not accepting the advice tendered by the cabinet representing the popularly elected parties, many a times the governors have created embarrassment to them.
In the case of many universities which were established before Independence (Like the Madras University in 1929), the Governors also became its Chancellors in an ex-officio capacity. They had autonomous power in the matter of appointment of the Vice Chancellors.
Though names were recommended by a panel nominated by various authorities, the governors used to choose from the list of candidates suggested by them. At times, they have rejected the whole list and called for fresh recommendations. This became a sore point between the governor and the state ruling party. In Andhra Pradesh, when legislations were amended to make the Chief Minister as the Chancellor of the University, the President of India refused to give assent for such a legislative measure.
In Tamil Nadu, when four of the Rajiv Gandhi assassins sent mercy petitions claiming pardon, the then Governor Fathima Beevi unmindful of the constitutional provisions dismissed their petitions without a cabinet advice. Later, this mistake was rectified by the High Court which reminded the Governor the correct constitutional position.
Recently, when the Governor of Kerala, Justice Sathasivam, gave assent to a state ordinance contrary to the Supreme Court decision, he was informed by the Supreme Court which did not hesitate to stay the same. These series of incidents, which were sometimes also taken to courts indicate one clear trend — either the governors appointed by the Centre were ignorant of the legal provisions or they were attempting to embarrass the state government. The recent happenings in Tamil Nadu where several protests were staged against the actions of the governor, some of which even led to the major opposition party conducting demonstrations, once again threw light on the same old questions and there are whole lot of debates on the powers of the governor.
To crescent these events, the latest ones are the Tamil Nadu Governor appointing an one-man commission in the aftermath of the leakage of a dialogue over the phone by a teacher working in a private college and the abortive attempt by the Lt Governor of Puducherry issuing a fiat in stopping distribution of PDS rice to villages which do not have sanitation certificates and overnight withdrawing the same on seeing the public protest.
Is the governor within his powers in appointing the one-man commission (Santhanam) for conducting an enquiry into the series of events after the audio leakage of a purported dialogue between a private college professor and her girl students?
The answer can be ‘yes’ and ‘no’. While the governor can order for a suo motu enquiry into the affairs of a university and its employees being the Chancellor of the University, there is no such power available in law to order an enquiry into the conduct of a private college teacher. A private college like the one in which the lady professor was working is affiliated to the Madurai Kamaraj University and even the University can order for a commission only regarding the issues arising out of conditions of affiliation.
All private colleges affiliated to an university are governed by the Tamil Nadu Private Colleges Act (1976) and the conduct of a teacher working in such colleges can only be enquired into by the respective college committee constituted under the Act. Any major decision by a college including sacking a teacher has to have the approval of the Director of College Education. Under the scheme of the Private College Act, the governor has no role to play.
When that is the case, it was unnecessary for the governor to order an alleged enquiry into the affairs surrounding the conduct of a private college teacher. Any report by the one-man commission appointed by him will have no legal value. Further, when the state government has entrusted the matter for a criminal investigation by the CB-CID, there was no scope for a person (even appointed by the Governor) to enquire or question their activities. Similarly, in the case of Lt Governor of Puducherry imposing a ban on distribution of PDS rice to villages which do not have sanitation certificate. This is not only high handed but also shows the arbitrary exercise of a power by a person appointed by the Home Ministry in bypassing a popularly elected government run by its Chief Minister. Ultimately, by such improper and unpopular actions, it is not just that the governor who earns flak from the common people but they might also mistake the ruling party as they might not understand the subtleties between the Governor and the cabinet. It is high time some code of conduct for the Governors are issued by the President of India after getting an advisory from the Supreme Court.
— The writer is a retired judge of the Madras High Court