Why is it in the News?

Recently, during a visit to the Calicut University campus, the Governor of Kerala referred to activists from the Students’ Federation of India as 'criminals.' This incident raises concerns about the conduct of Governors in states led by opposition parties and underscores the need to examine the legal implications of such statements.

Context:

• In Kerala, the State Assembly passed a Bill to abolish the Governor’s chancellorship.
• The Governor did not give assent to it and referred the Bill, along with others, to the President.
• This happened after he sat on the Bills for a long time and after the government moved the Supreme Court to pray for gubernatorial assent.
• It was in this context that he visited the University as Chancellor, against the will of the Assembly.
• This action lacked democratic legitimacy.

Role of Chancellor in State Public Universities:

• State public universities are established through state legislation, with the Governor typically designated as the Chancellor in most laws.
• As Chancellor, the Governor serves as the head of public universities and holds the authority to appoint the Vice-Chancellor.
• The Chancellor possesses the power to invalidate any university proceedings not in accordance with existing laws.

Governor's Discretion as Chancellor:

• In 1997, the Supreme Court clarified that the Governor, in the capacity of Chancellor, is not bound by the aid and advice of the Council of Ministers when performing duties related to a separate statutory office.
• Both the Sarkaria and Punchhi Commissions acknowledged the Governor's independence in discharging statutory functions, emphasizing that the Governor is not legally obligated to follow the advice of the Council of Ministers.
• However, consultation with the concerned Minister may be beneficial for the Governor

Limits to immunity:

• Article 361 of the Constitution provides only a limited and conditional immunity for the Governors.
• It says that Governors shall not be answerable to any court for the exercise and performance of the powers and duties of their office or for any act done or purported to be done by them in their official capacity.
• This does not mean that Governors are not liable for their misbehaviour unconnected with their official duty.
• In Rameshwar Prasad v. Union of India (2006), after finding that the Governor abused power in recommending Presidential rule in Bihar, the Supreme Court said that the motivated and whimsical conduct of the Governor is amenable to judicial review.
• Yet, the question of whether Governors can claim immunity for extra-constitutional gestures and utterances was not a matter of issue in Rameshwar Prasad.
• However, the Court said that “right persons” should be chosen as Governors to maintain “the sanctity of the post”.

Legal Implications of Derogatory Comments by Public Functionaries:

• Kaushal Kishor v. State of Uttar Pradesh (2023): The court emphasized that the freedom of expression for public functionaries should only be restricted by 'reasonable restrictions' outlined in Article 19(2) of the Constitution.
• Regarding ministers, Justice B.V. Nagarathna highlighted that if a public functionary's statement contradicts the government's stance, the minister is personally responsible and can face consequences for the remarks.
• While there was agreement on the personal liability of public functionaries for actions unrelated to their public duty, there were varying opinions on the enforcement of fundamental rights against non-state actors.
• This implies that public functionaries do not enjoy statutory or constitutional immunity if they commit a crime, including offences like defamation, especially when the act is unrelated to or conflicts with their official duties.

Commission reports:

• The Sarkaria Commission Report (1988) lamented that “some Governors have failed to display the qualities of impartiality and sagacity expected of them”.
• It added that “many Governors, looking forward to further office under the Union or [an] active role in politics after their tenure came to regard themselves as agents of the Union”. Since then, the situation has only worsened.
• The Commission’s recommendation that the “(Governor) should be a detached figure and not too intimately connected with the local politics of the State” remains wishful thinking.
• The Justice M.M. Punchhi Commission report (2010) said that “to be able to discharge the constitutional obligations fairly and impartially, the Governor should not be burdened with positions and powers which are not envisaged by the Constitution.”
• It said that conferring statutory power on Governors by posting them as chancellors of the universities will have the potential to expose Raj Bhavan to “controversies or public criticism”.

Way Forward:

• Legal Prohibition: The state legislative requires systemic changes regarding the office of the Governor, necessitating a legal prohibition against further appointments of Governors in any official capacity.
• Constitutional Amendment: The central government should consider amending Article 155 of the Constitution, involving consultation with the Chief Minister, as recommended by the Sarkaria Commission.
• Establishing an independent body for Governor selection, with a significant role for the Chief Justice of India, could enhance the quality of the selection process.
• Constitutional Morality: While the Constitution may not regulate individual behaviour, emphasizing the notion of constitutional morality is crucial.
• In the NCT of Delhi v. Union of India (2018) case, the Supreme Court highlighted the importance of identifying the "moral values of the Constitution" based on a notion of "constitutional culture."
• It stressed that "constitutional morality places responsibilities and duties on individuals who occupy constitutional institutions and offices."

Conclusion

While the office of the Governor is entrusted with defending the Constitution and advising elected regimes, it is essential to prevent the potential misuse of powers in the absence of a defined time frame for decision-making. Establishing a reasonable time frame for Governors to decide on Bills passed by the Assembly is imperative to safeguard the principles of federalism in the country.

Important Constitutional Provisions Related to the Governor:

• Article 153 stipulates that each state shall have a Governor, with one person who can be appointed as Governor for two or more states.
• The Governor of a State shall be appointed by the President by warrant under his hand and seal (Article 155).
• A person to be eligible for appointment as Governor should be a citizen of India and have completed an age of 35 years (Article 157).
• Article 156 of the Indian Constitution deals with the Term of office of Governor.
• It further states that the Governor shall hold office during the pleasure of the President.
• Article 161 grants the Governor the power to grant pardons, reprieves, etc.
• However, the Supreme Court clarified that the Governor exercises this power in consultation with the State government, being bound by its advice.
• Article 163 establishes a council of ministers headed by the Chief Minister to aid and advise the Governor in performing functions, with certain exceptions for discretion.
• Article 164: 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.
• Article 174: The Governor can also summon, prorogue, and dissolve the Legislative Assembly.
• By convention, he does this on the advice of the Council of Ministers while they enjoy the confidence of the Assembly

Discretionary powers include:

• Appointment of a Chief Minister in the absence of a clear majority in the state legislative assembly
• Handling situations like no-confidence motions
• Addressing the failure of constitutional machinery in the state (Article 356)
• The Governor's authority concerning the passage of bills is delineated by Article 200 and Article 201. The Governor may:
• Give assent, turning the bill into law
• Withhold assent, rejecting the bill
• Return the bill (if not a money bill) to the state legislature for reconsideration, with or without specific recommendations
• If the bill is reconsidered and passed again, the Governor cannot withhold assent.
• The Governor may also reserve the bill for the President's consideration, who can assent, withhold assent, or direct the Governor to return the bill to the state legislature for further review.