The position of a Governor in India was a derivative of the colonial Government of India Act, 1935, which was considered by Indians then to be a thorn to the democratic revolution engulfing the Indian subcontinent.
Dr B.R. Ambedkar, while justifying the retention of the post of the Governor, sought to base it on the federal and democratic regimes of Australia and Canada.
In the Constituent Assembly he was strongly confronted on the discretionary powers of the Governor and that it would lead to an autocratic regime in the provinces or states and that it would override the democratic ethos of government therein. But then our fathers were also confronted with the problem of uniting the nation and as a corollary to that, ensuring a visible and viable presence of the Centre in the States.
The Shamsher Singh Case
Our constitutional fathers had envisaged a scheme of checks and balances while framing the Grundnorm of our Nation. Article 164 (1) of the Constitution states that the Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the “pleasure” of the Governor.
“Pleasure” is to have not a personal connotation but must bear semblance in the constitutional sense. This was laid down in the landmark judgment of Shamsher Singh, where the majority bench opined that whenever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or the Governor, but the satisfaction of the President or Governor in the constitutional sense in the Cabinet system of government that is satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises his powers and functions.
Thus, concurring, the constitutional bench held unanimously that therefore, appointments and removals of persons are made by the President and the Governor as Constitutional head of the Executive on the aid and advice of the Council of Ministers.
Justices V.R. Krishna Iyer and P.N. Bhagwati, while concurring with the larger judgment, stated that the “President, like the King, has not merely been constitutionally romanticized but actually vested with a pervasive and persuasive role. While he plays such a role, he is not rival centre of power in any sense and must abide by and act on the advice tendered by his Ministers except in a narrow territory which is sometimes slippery.”
Whose Privilege, Whose Pleasure?
Then the question that we must amuse ourself with is, in the politics of governance, the corridors are but often slippery, and democracy being a majoritarian rule, the majoritarian regime of any, has often tried and navigated, both successfully and unsuccessfully this slippery turf.
Therefore, as the recent episode of Kerala Governor Arif Mohammad Khan’s tweet that he was empowered to “invite action including withdrawal of pleasure” against ministers, in so far as appointment of elected representatives of people to lead the government may be termed as over reach of his powers, maybe less, but it still has to be tested on the pedestal of constitutional courts of our country.
And with our constitutional courts constantly upholding the prerogative of our legislature as being the repository of our people’s authority, and intention, the question of an appointed office questioning the appointment of democratically elected mandate goes is a slingshot aimed at the roots of our Constitution.
Crucial to understanding the debate is also the fact that the Governor’s powers are linked intrinsically to the Election Commission of India. A person once having been duly elected can of course become disqualified from remaining as a member of a House of Legislature. Article 192, as substituted by the 42nd and 44th Amendment, which lays down that if any such question arises, it will be decided by the Governor and the order or decision of the Governor shall be final.
The only rider to this follows in the next clause of the same article which state that before giving any decision on any such decision, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.
The way I therefore see it, is the Governor’s ‘pleasure’ is subject to Election Commission’s opinion and is not absolute or by the other vice, offered to the Governor — ‘discretionary’.
Again recently, the Hon’ble Supreme Court of India in Subhash Desai verus Principal Secretary, Governor of Maharashtra And Others (2022) has referred the question of discretion and power of the Governor to invite a person to form the Government, and whether the same is amenable to judicial review.
The ambivalence of ‘pleasure’ and ‘discretion’ given to a Governor’s office is therefore, to be examined through legal lens because it is these edicts which draw the contours of the office of the Governor. More so, in the popular context of democracy being a Government by the people, of the people and for the people.
(The author of this opinion piece is an Advocate-on-Record at the Supreme Court of India. The views expressed are personal)