Introduction

India has a parliamentary style of government, within which the Governor is not the head of the Government, but merely a titular head of the State. A cursory reading of Constituent Assembly Debates indicates that the framers were wary of conferring discretionary powers to the Governor. In order to ensure that the institution of the Governor’s office functions as a check on the powers of the legislative assembly, or more so as to bridge the gap between the Union and the State and facilitate the functioning of the state assembly, it is important to ensure that it functions free from partisan politics. This article attempts to examine if Shri Jagdeep Dhankhar, the current Governor of Bengal, has succeeded in upholding the principles that are expected of his constitutional office.

Role of the Governor in India under the Constitution

The role and powers of the governor in the Indian constitution have been mired in ambiguity – while based roughly on the lines of the roles of the monarch in the British constitution, the written nature of the Indian constitution severely limits within hard-drawn lines a broad gamut of prerogative powers.

During the constituent assembly debates, Rohini Kumar Choudhary pointed to potential loopholes in the way discretionary powers may be exercised by the Governor. Concerns around such misuse led to the deletion of specific provisions that conferred discretionary powers on the Governor from the Draft Constitution, except in specific circumstances. The framers, while wary of the potential misuse of authority, also highlighted the importance of harmony between the Union and the State through the smooth functioning of the Governor’s office.

This was reiterated by the Sarkaria Commission in its report, where it noted that the office of the Governor acts as a bridge between the Union and the State, and can foster better understanding between them to improve souring relations. The Governor is expected to rise above party prejudices and predilections. The report noted that in a working of a parliamentary democracy, there needs to be a personal rapport between the Chief Minister and the Governor, wherein the Governor is to act as a ‘friend, philosopher, guide’ of the council of ministers. It was recommended that even when the Governor is vested with discretionary powers in certain circumstances, the same is to be construed strictly, disallowing him to act in contravention of the aid and advice of his ministers, or in a ‘fanciful’ or ‘arbitrary’ manner.

In addition, the Supreme Court has established and followed through on its position of understanding the role of the Governor as discharging his constitutional duties on the aid and advice of his ministers, and not personally, in cases like Shamsher Singh v. State of Punjab,  where the Court held that the Governors and Presidents are constitutional heads, similar to the Crown in England and must necessarily act upon the aid and advice of ministers.

However, Governors have often acted in consonance with party politics and in disregard to their constitutional duty to either act on discretion or to act as a vital link between Union and the State. This can be attributed to the fact that the Governor is appointed by, and holds office during the pleasure of the President, which is in effect, the Union Council of Ministers. He furthers the cause of the party holding power at the Union government, often at the cost of his constitutional duties, and to the detriment of the elected government at the state.

In its consultation paper, the National Commission to Review the Working of the Constitution (2001) recommended  that it is imperative for the Governor’s office to be instilled with adequate independence of action that distances him from the Central Government’s influence and instructions, and allows him to only extend his loyalty and commitment to the Constitution and the welfare of his state. It is also pertinent to note that the report advised the Central Government against undue intervention with the States’ powers in order to preserve their authority and participate in cooperative federalism, instead of “confrontational politics,” in order to best serve our nation’s interests.

The situation in Bengal, however, seems to indicate that despite these recommendations, governors often further the political agenda of the party behind the Union government, and actively impede the administrative and judicial processes in the states. 

Situation in Bengal and its Constitutional Implications

In light of this, it is pertinent to look into Shri Jagdeep Dhankhar’s office and if it stands tall with the established constitutional principles. The Governor’s office, on multiple occasions, has been accused of toeing the line with the motivations of the ruling party, harming the fundamentals of a parliamentary democracy. Governor Dhankhar’s sanction for arresting three MLAs from the ruling Trinamool Congress (TMC) over the Narada scam has again brought to light the doubts and questions that plague the gubernatorial domain in India.

The Calcutta High Court, in January this year, had issued clear instructions to the CBI to approach the assembly speaker in furtherance of the matter and take his consent. However, the speaker’s authority was circumvented as the CBI went to Governor Dhankhar for sanctioning prosecution against the said leaders. He invoked his powers under Article 163 of the Constitution, which allows him to decide on the matters on which he can act on his discretion, as the competent authority to accord such sanctions, without giving notice to his Chief Minister, or the speaker of the assembly.

The Calcutta High Court agreed and stayed the interim bail, citing Dhankhar’s authority to sanction arrests. While there is no doubt that the Governor can authorize such arrests in exceptional circumstances, the question that one needs to ask here is whether the situation at hand was in fact exceptional enough to require the Governor to exercise his discretionary powers and circumvent the role of the Speaker. There is nothing to show why the CBI found it expedient to approach the governor and not the Speaker, and why the governor acquiesced to the CBI demands without pointing out that the Speaker is the proper authority to be approached. The only plausible explanation seems to be that, being a nominee of the Central government to Bengal, the Governor took this opportunity to further the cause of the ruling party and tried to dismantle the newly elected government in Bengal.

Governor’s friction with ‘Aid and Advice’

Despite the state government advising against it, Governor Dhankhar made visits to post-poll violence hit areas, Nandigram and Sitalkuchi with BJP MLAs, violating ‘longstanding norms and procedures,’ according to the government. He expressed his disdain towards the state government by referring to the law and order situation in Bengal as being in a state of ‘lawlessness,’ through a series of tweets. All of this while keeping his Chief Minister in dark with respect to sanctioning prosecution of his sitting minister in the Narada sting case being investigated by the CBI.

It is hard to overlook the manner in which Governor Dhankhar is using his office, and the threat it poses to the tenets of our democracy which require him to act in consonance with the manner in which his office was envisaged to be exercised by the framers of the Constitution. The Constitution, cognizant of the possible clashes between the Centre and the State, provides for channels through which concerns can be addressed, and vests the Governor with discretionary powers under Article 163 in certain circumstances. Further, Article 167 of the Constitution provides for the right of the Governor to seek information on various state issues and policies, and the Chief Minister is ought to provide him with such information within the proper channels. However, instead of following the Manual of Protocols and Ceremonials of West Bengal Government, or reaching out to his Chief Minister within the constitutional channels provided to him while faced with the law and order crisis during post-poll violence, Governor Dhankhar ostensibly extended his support to the BJP, by joining its MLAs to the areas, defying his Minister’s advice on following protocol, and unapologetically expressed his disdain towards the state government.

Political Analysts and Constitutional Scholars have accused the office of being treated as a parallel government within the state, and the accusation is not ill-founded. Shri Dhankhar is far from acting as a ‘friend, philosopher, guide’ to his council of ministers, as he vehemently opposes their actions and decisions, without as much as consulting or discussing with them. The tussle is indicative of the lack of confidence the ministers and the Governor have in each other, directly contrary to what was envisaged by the framers who emphasised on the powers of the Governor being hinged on the ‘aid and advice’ of the Council of Ministers, except in certain circumstances.

It is thus submitted that the exercise of his powers is largely at loggerheads with the purpose and expectations of his office under the Constitution.

Conclusion

The line of judicial decisions, constituent assembly debates, and recommendations of committees serve to emphasise that the role of the governor is such that it cannot act in a manner detrimental to the interests of the constitution, which above all, requires him to act as smooth link between Union and the State. It bears repeating that Shri Dhankhar’s repeated conflicts with his Chief Minister, and his concerns about the law-and-order situation in Bengal directed as a public attack on the working of the state government are based on questionable and partisan motives, and does not sit well with established constitutional principles.

A constitutional head owes allegiance only to the Constitution and not to political parties. He is to act in a fair, impartial manner which is above and beyond party politics and tactics, with due regard to the Constitution. Governor Dhankhar has not only acted in an ostensibly partisan manner, but has also defied aid and advice of his ministers in a manner which casts serious doubt on the independence of the office.

It is submitted that Governor Dhankhar has acted in defiance of the expectations of his office that require him to act as a friend and a guide to his Chief Minister, and as a vital link between the Centre and the State. Despite being a titular head, the Governor’s office serves as a vital link between the Centre and the State, and by fuelling the fiction between his and the Chief Minister’s office, Governor Dhankhar poses a frontal attack to the popular verdict given to his Chief Minister, instead of respecting it and working toward solving the law and order situation that unfolded in Bengal. The Constituent Assembly Debates indicate that the framers envisaged a nation with unity and integrity, and wished to avoid clashes between the centre and the state. Thus, a system was adopted wherein the Central head, the president, appoints the states’ head, vesting discretionary powers in him, cautioning that he must exercise his office in a manner which is in consonance with honesty, fairness and judiciousness.

However, continuous friction, abeyance of aid and advice, wilful disdain, and an ostensibly partisan behaviour on part of Governor Dhankhar continue to strain the relations between the Governor’s office and the State Government and are indicative of much deeper issues that plague the Gubernatorial Domain in India.

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ABOUT THE AUTHOR

Sudipta Choudhury

Sudipta is a fourth-year student at NALSAR, Hyderabad, and is deeply interested in Constitutional Law.