Karnataka verdict exposed how the position of governor is compromised

According to the provisions of Article 157 and 158 of the Constitution of India, in order to be eligible for appointment as a governor of a state, a person has to be a citizen of India, over 35 years of age, should not be a member of any house of Parliament or any other state legislature besides not holding any other office of profit.

This means any person who has no formal education or qualification and may have been an MP or an MLA in the past as an independent or as an active member of any political party/parties supporting him/her is also eligible to be considered for appointment to the august position of the head of a state, if he/she is above 35 years of age and a citizen of India not holding any office of profit.

The requirement of not holding an office of profit is mandated to ensure the independence of this position while preserving the separation of powers in any other official position no longer permissible to be concurrently held by such a person.

Although eminent positions as those of the president of India, vice-president, including governors/lieutenant governors are expected to discharge their roles and responsibilities fairly and without any biases, the fact that former politicians can and mostly get the opportunity to acquire such positions, ensures that past affiliations come in the way of discharging duties.

The governors, including the lieutenant-governors/administrators, of our states and union territories are appointed by the president for a term of five years. A governor or a lieutenant governor is expected to act only as a nominal head while the real power of governance and administration lies with the chief ministers and their council of ministers. A lieutenant governor is in-charge of a union territory.

The primary function of the governor is to preserve, protect and defend the Constitution and the law as incorporated in his/her oath of office under Article 159 of the Indian Constitution in the administration of the state affairs. All his/her actions, recommendations and supervisory powers (Article 167c, Article 200, Article 213, Article 355, etc) over the executive and legislative entities of a state are to be used to implement the provisions of the Constitution. In this respect, a governor has different types of executive, legislative and discretionary powers.

For the executive powers vested by the Constitution in a governor, he/she appoints the chief minister, (who enjoys the support of the majority in the legislative Assembly), the other members of the council of ministers, (and distributes portfolios to them on the advice of the chief minister), appoints the advocate general, the chairman and members of the State Public Service Commission, the State Election Commissioner, the judges of the district courts and is consulted by the President in the appointment of judges of the high courts. The governor by virtue of his office is also the chancellor of most universities in the state.

Under his legislative authority, the governor summons sessions of both houses of the state legislature and prorogues them. The governor can dissolve the Vidhan Sabha acting in accordance with the advice of the council of ministers headed by the chief minister and is also empowered under Article 192 to disqualify a member of the state legislature when the Election Commission recommends that the legislator is no longer complying with provisions of Article 191.

As per Articles 165 and 177, the governor can ask the advocate general to attend the proceedings of both houses of the state legislature and report to him any unlawful functioning.

In addition to these important executive and legislative powers, the governors also enjoy discretionary powers in the selection of the chief ministerial candidate in situations where no party gets a clear majority and ask him/her to prove the majority as soon as possible.

In the Karnataka case, governor Vajubhai Vala only seemed to have exercised his discretionary authority in deciding to administer the oath of office on to BS Yeddyurappa on May 17, and to ask him to prove his majority on the floor of the House.

The decision was taken on May 16, as everyone in the country was sure that the Congress-Janata Dal Secular (JDS) alliance was likely to challenge the order and that by fixing the swearing-in for 9am the next morning, it could perhaps completely stall the possibility of the court to give the alliance a hearing in the intervening period.

It is a different matter that the chief justice of India decided to grant them an immediate hearing and to reduce the timeline to prove majority on the floor of the house from 15 days to just 24 hours.

The term of governor's office is normally five years but it can be terminated earlier by the president (usually on the advice of the prime minister and his council of ministers). Dismissal of governors without giving valid reasons is not permitted.

However, it is the duty of the president to dismiss a governor whose acts are upheld by courts as unconstitutional and mala fide. Under Article 361 of the Constitution, a governor cannot be summoned for questioning except when he is willing to testify in the court. The case would be decided by the courts based on the facts furnished by the Union government.

Considering the overall framework of the law and the constitutional provisions, it may be time to bring about major changes both in the eligibility criterion for consideration for appointment to such positions, and clarity on the powers exercisable under such ambiguous situations.

Besides assuring the security of at least a full six-year term for all governors, provisions to ensure for them immunity from the pressure of political powers of all hues must also be considered.

Also, it is worth noting that while positions such as lokpal, central vigilance commissioner and chief information commissioner require certain minimum qualification, why not the governors. Why can't governors be appointed from among senior-most members of the judiciary, civil services, technocrats, academicians and media professionals.

With coalition politics here to stay, it is important to ensure the office of governors is not misused for making and breaking holy and unholy alliances. Until that happens, the apex court must safeguard democratic values and institutions, including the office of the governor.

Also read: BJP has even made Rahul Gandhi a hero by not being able to form government in Karnataka