Indian Executive

Why two heads are needed in parliamentary system? ?

1. Continuity 2. Neutrality.

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President of India

Analysis of the position of president.

Approach of constituent assembly – lack of clarity. Hence left it on the time to shape the institution. Expected healthy conventions in accordance to parliamentary system.
Position of president in original constitution – Original constitution does not create a rubber-stamp president. President had discretionary powers. e.g. President was not bound to act on the aid and advice. Pocket veto which is more powerful than even US president. President can send the bill back for reconsideration of house.

Evolution of the post of president

The lack of clarity created disputes.
1) Dr. Rajendra Prasad and Pandit Nehru on Hindu Code Bill. 
2) 24th AA 1971, partially addressed the infirmity – it became binding on president to give ascent to constitutional amendment bills (CAB).
3) 42nd AA. It ended all infirmities. It brought the institution in accordance to the theory of parliamentary form of govt. 1_Made it mandatory for president to act on aid and advice.  2_It became clear that the ground of impeachment will be when president does not act as per advice. 
4) 44th AA. Restored partial discretion as president could send the advice back for reconsideration, but only once. 
According to the constitutional experts, 44th AA was not correct in accordance to the parliamentary system. It was not motivated by any democratic concerns. It was motivated by political calculations. i.e. 1_In case PM is from Congress and President from non-Congress. Non-Congress parties can utilize the institution in their favor.  2_When 42nd as well as 44th AA has been done, pocket veto has been left as it is. It seems the objective was to utilize the institution of president.

Actual Practice

Since coalition era, presidents have not always adhered to the norms of parliamentary system. There are numerous examples of presidential activism. [ It is a situation when president acts in a discretionary manner ].
However, it is not desirable. It should not be equated with judicial activism. It is not correct as per the principles of parliamentary system. President is not an institution of accountability, it is parliament and ultimately people. The case studies of presidential activism show that the activism was directed more by party considerations than democratic considerations. Whenever the position of Prime Minister is weak because of hung parliament, there is a scope for other institutions like Judiciary, President to increase their power.

Position of president in Indian setup.

Best explained by former president R. Venkatraman. ‘President is a emergency lamp’. Prime Minister is a main power and president comes to light only when main switch is off. It is not proper to call president as rubber stamp. President is a position of dignity. He is a symbol of nation, hence it is better to describe president as constitutional head.
In parliamentary setup his role is of friend, philosopher and guide. There are three rights of Queen in Britain (Explained by Bagehot) – Right to 1. Informed 2. Advice 3. Warn.  (/Find yourselves)

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Co-habitation.

The concept of co-habitation is a feature of French constitution (semi-presidential type). Where president as well as prime minister have executive powers and not just nominal powers. In France, the position of president is good/smooth when prime minister is also from his party. However the problem arises when they are from different parties. Such a state is called co-habitation. There are occasion when such system has emerged in India, co-habitation impacts the smooth functioning.

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Prime Minister

Do you think the position of Prime Minister in India is of primus inter pares or inter stelll luna minores? (First among equals or moon among stars.)

These statements explain position of PM vis-a-vis other ministers. Whether PM is first among equals or moon among stars will depend on multiple factors e.g. 1] Personality of the PM.  2] Position of his party in Parliament.
Examples in India.
Pandit Nehru – Till Sardar Patel was alive – first among equals. After that – moon among stars.
Indira Gandhi – During her time parliamentary system changed into prime ministerial system. In actual functioning it started developing authoritarian trends.
Rajeev Gandhi – Both under Indira Gandhi and Rajeev Gandhi, there was collapse of Cabinet form of govt. Loyalists had greater say that the ministers. Under Rajeev Gandhi, technocrats were given huge importance over elected representatives.
Position of PM under coalition govt. – Coalition govt. is a fragmented govt. hence in principle position of PM becomes weak. However it is not necessary. It depends on the personality of PM. Vajpayee could provide the leadership even Manmohan Singh could provide leadership in the 1st term, unfortunately could not show leadership in the 2nd term.
In India at times some features of socialist countries also appear where power shifts out of the hands of formal heads into the head of political party. e.g. During the time of Manmohan Singh, diarchy emerged. Responsibility with PM whereas power with the head of the Congress Party.

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Office of Governor

As per Art 153, there shall be a governor for each state, same person can be appointed as a governor for more than one state.
Art 154 : The executive power of the state shall be vested in Governor...

Need for post of Governor.

Like union system, we have adopted ‘parliamentary system’ even at the state level. According to the theory of parliamentary system, there is a need of two heads: 1) nominal head e.g. queen in Britain, president in India and 2) real head – prime minister at union level, chief minister at state level.
1)  Parliamentary system is unstable, hence the head with fixed term is needed for the purpose of continuity in administration. 
2) Parliamentary system is based on party politics. Hence a head is needed who can be treated as above party politics.
Hence even at the state level, two heads were needed. If Chief Minister is the real head, Governor is a nominal head. Supreme Court in Shamsher Singh case has clarified that there is no difference in the status of President and Governors, both are constitutional heads.

Unique role of Governor in Indian federation.

Governor has dual responsibility. Besides the nominal head of the state, he is also a link between union and state. In the words of Sarkaria commission, ‘Governor is a lynchpin’. 
Unlike USA, which has dual federalism, India has cooperative federalism. Two governments are not independent, rather interlocked. Governor has a important position in linking the two sets of governments. In reality, the institution of cooperative federalism however turns out to be the institution of bargaining federalism.

Actual Practice

As a lynchpin, Governor has to do ‘bridge-building’. 1) He has to communicate the state’s aspirations to the Union.  2) Governor brings national perspective at the state level.
According to Paul Brass, unlike Nehru’s view, Indian constitution has been framed not in the atmosphere of optimism but in the atmosphere of fear, trepidation. Partition and cessationist movements created a situation where an agency was needed to keep watch on local developments. Thus Governor is like ‘eyes and ears’ of Union at the state. Governor is like ‘long arm’ of Union with iron fist and velvet gloves.

What makes institution of Governor controversial?

Discretionary powers of the Governor. When a constitutional functionary has to take decision solely on the basis of reason.
Art 163 (1) – There shall be a council of ministers with the Chief Minister  as the head to aid and advice the Governor ,except where constitution requires Governor to act in his discretion.
Conditions in the constitution where Governor can exercise discretion.
1) Art 174 prorogue and dissolve the assembly.  2) Art 175 – Send messages to the assembly.  3) Art 200 – Giving ascent to the bills.  4) Art 201 – Reservation of Bills for president’s consideration.  5) Art 356 – Recommendation of president’s rule.
In some states like Nagaland, Governors have special responsibility.

Nature and scope of discretionary powers of Governor.

According to Constitution – huge scope. Art 163(2). If any question arises whether the matter is such where Governor should exercise his discretionary powers or should not exercise, the decision of Governor will be final and cannot be called into question. (Beyond the scope of Judicial Review.)
Art 361 – Neither president, nor governor is answerable to any court for anything said or done in context of its constitutional responsibility.
According to the Supreme Court Nebam Rabia case, the decision of governor is not beyond the scope of judicial review. Judiciary can enquire whether the action of governor was with mala-fide intention.

Examples of the arbitrary exercise of power.

Most of the examples are with respect to the misuse of Art 356. The misuse started during the time of Pandit Nehru itself.
 1) 1952 – Governor of Tamil Nadu T Prakasam, instead of inviting communists who had more seats invited C Rajagopalachari of Congress to form the government. 
2) In 1959 the first misuse of Art 356 when the communist government of Kerala was thrown out of power without valid reasons.
3) In 1984, Governor of Andhra Pradesh dissolved the government on the ground that NTR ( N T Ramarao), the then Chief Minister was abroad for medical treatment. 
4) In 1998, Governor of UP Romesh Bhandari dissolved Kalyan Singh government, appointed Jagdambika Pal as Chief Minister without even giving opportunity to Kalyan Singh to prove majority on the floor of the house. Significance of the case: As  per constitution, judiciary cannot intervene in the procedures of the legislature. However in above situation, Judiciary had to intervene, directed ‘composite floor test’. Both the parties were to prove their majority on the same day. Jagdambika Pal lost the majority. 
5) In 2006, Governor Boota Singh of Bihar, dissolved the assembly immediately after the election, even before the first meeting of the assembly. He feared that there is a possibility of horse trading. 
6) 2016 Governor of Uttarakhand – He gave govt. time to prove the majority but dissolved the assembly 1 day before. Basis: Sting operation released by media. Governor assumed that existing Chief Minister will offer bribe to the MLAs to support him.
7) 2016, Governor of Arunachal Pradesh preponed the session of assembly using the discretionary powers. It is the power of Chief Minister and not Governor to call the assembly. Governor can call someone on its own only when more than six months   have been passed and Chief Minister does not intend to conduct assembly.
8) 2017, Governors of Goa and Manipur did not invite the largest party to form the government. In Goa BJP got 13 seats, Congress got 17 seats. In Manipur BJP got 21 seats, Congress got 28 seats. 
9) Governor of Karnataka did same. To form govt. 112 seats are required, BJP got 104, short of 8 sears. There were 3 independent candidates. Congress and JD(U) had secure 115 seats.
Above analysis show, whichever is the ruling party at union, it repeats similar action.

Should we abolish the post of Governor?

According to legal experts like Gautam Bhatiya, it would be a great service to the nation if we abolish the post. However that is not possible because of the parliamentary system. It would be better to reform the post.

What reforms are needed?

1] Reform the system of appointment.
Governors are appointed by Union. The bigger problem is constitution hardly mentions the qualification. Only two qualifications – Must have completed 35 years of Age, Citizen of India.
The issue was raised in the assembly. Pandit Thakur Das Bhargav asked Pandit Nehru, we should provide specific qualifications to prevent misuse. Pandit Nehru assured that there is nothing to worry, healthy conventions will be followed.
What conventions?
1) Eminent persons.  2) Governor will not be from the same state.  3) No active political or administrative background.
Actual practice. 
Spoils system was introduced. Means appointment of favorites. The post of Governor became the post of rehabilitation for the rejected  politicians. The politicians losing elections have been made governors and have been used to undermine the Chief Ministers elected by the people. 
Besides this, ex-Bureaucrats including judges have been appointed even without cooling period.
What is to be done?
1)  Since healthy conventions have not been followed, it is better to write the qualifications in black and white.
2) Rajamannar committee of Tamil Nadu Govt., Sarkaria Commission, 1st ARC, 2nd ARC suggested prior consultation with the Chief Minister. If Chief Minister is not comfortable, such person should not be appointed.
3) Punchhi commission suggested to use the platform of inter-state council, prepare a panel, appoint Governors in auto-pilot mode.
Above suggestions can improve the situation.

2] Removal of Governor
2As far as removal of Governors is concerned, Governors are at the pleasure of President, which means Union govt. In this context, Supreme Court’s Ruling in B. P. Singhal vs Union of India case 2010 has made the necessary amendments.  1) According to Supreme Court, Pleasure doctrine for removal is acceptable.  2) Union should retain the power to remove the Governor, whenever it become necessary in its point of view.  3) No need to give reasons to the governor, no need to give opportunity to the governor to present his case.
However  1) Governors should be allowed to complete their terms. 2) Governor adheres to an ideology different from the ideology of ruling party at the union is not a basis to remove governor. 3) The decision of the union executive is subjected to the judicial review.

Important judgements of Supreme Court on Governor

1] Hargovind Pant vs Raghukul Tilak case 1974. The judgement was given by constitutional bench, with unanimity. 1) The office of Governor is a constitutional office of dignity.  2) Even when Governor is appointed and removed by Union, he is not employee of Union.  3) He is not answerable to Union for the conduct of the duties of his office.  4) Discretion of the Governor should be Governor’s discretion and not Union government’s discretion.
2] Rameshwar Prasad vs Union of India case 2006. Supreme Court expressed concerns over the state of the institution. Held that the office of Governor is a office of dignity. Governor takes the oath to preserve, protect and defend the constitution and to serve the people of the state.
3] D C Badhawa vs State of Bihar. Ordinance making power of Governor. The ordinance making power cannot be the basis for bypassing the power of parliament or legislature. It will be treated as ‘colourable exercise’ and fraud on the constitution. It is within the scope of judicial review.

Way forward

Soli Sorabjee – SAGE OF SABOTEUR
Governors can do great good if they are good governors. They can do great harm if they are bad governors.
Punchhi Commission
The importance of Governor has increased because of rising internal security challenges.  Discretionary powers cannot be used in arbitrary manner.
Manmohan Singh
He gave four mantras to the Governors in Governors conference. 1] You are the sole judge of what is right and what is wrong. 2] You have to see what is in the best interest of the country. 3] It is your judgement to understand mandate of the constitution. 4] It is your obligation to understand what people expect from you.