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Indian Polity - Centre state Relations - Mechanism of co-operation
                                                                                                    September 10, 2017


MECHANISMS OF COOPERATION

ROLE OF GOVERNOR

The governor has a great role in promoting cooperative federalism as he acts as a vital link between the centre and the state government.

Various role of governor as a binding agent are as follows:

Reservation of bill passed by the state legislature may be reserved for the consideration of the President by governor under Article 200.

Under Article 356, the governor gives report of the working of constitutional machinery of the state. It ensures that states actions are in confirmation with the central law and directions.

Governor is charged with the duty to preserve, protect and defend the Constitution and the laws. Thus he has a duty and obligation to promote political stability and upheld ideals of Indian democracy

Under Article 163, he exercises his functions with the aid & advice of chief minister and his council of minister except where he is required to function in his discretion. Thus working in coordination with the state
government.

He can seek information from chief minister regarding any legislative or
administrative matter in the states. Thus, he can inform central
government regarding the existing situation in the state.

At the same time, role of governor is one of the major points of tussle between centre and state. The major sticking points are discretionary powers with respect to the following issues:

PRESIDENT’S RULE

Article 356 has been abused by central governments for more than 120 times till date. In such times, the state comes under the direct control of the central government. The President dissolves the state assembly and orders the centrally appointed Governor to execute the operations of the state. The problem arises because the breakdown of constitutional machinery is not defined in constitution and this is misused by political parties to its advantage as was seen in the case of Arunachal Pradesh and Uttarakhand last year.

Supreme Case judgments related to Art. 356
* S R Bomai vs Union of India
1) Art. 356 should be used “very sparingly”, & not for political gains.
2) Government’s strength should be tested on the floor of the house and not as per whims of the Governor.
3) Court cannot question the advice tendered by Council of ministers but it can scrutinize the ground for that advice of imposition of
President’s rule and may take corrective steps if malafide intention is found.
4) Use of Art 356 is justified only when there is breakdown of constitutional machinery & not administrative.

Buta Singh case
1) The governor’s report could not be taken at face value and must be verified by the council of ministers before being used as the basis for
imposing President’s rule.
2) It was alleged that in 2005, Governor of Bihar, Buta Singh had recommended dissolution of the Assembly on the basis of his subjective
satisfaction that some parties were trying to obtain majority through unethical means.
3) The Supreme Court ruled that if a political party with the support of other parties or MLAs staked claim to form a government and
satisfied the Governor about its majority, he cannot override claim because of his subjective assessment that majority was formed through tainted means.

Observations of relevant Committees/Commissions with respect to Article 356

Sarkaria Commission (1987)
- Article 356 should be used very sparingly, in extreme cases and only as a matter of last resort.
- Any imposition of Article 356 should be accompanied with a report by Governor to the President with relevant facts and details.
- No dissolution of Assembly till proclamation is ratified by the parliament

National Commission for Reviewing the Working of Constitution (2002)
- A warning should be issued to the errant State, in specific terms that it is not carrying on the government of the State in accordance with the Constitution. Before taking action under Article 356, any explanation received from the State should be taken into account.
- The Governor's report, on the basis of which a proclamation under Article 356(1) is issued, should be given wide publicity in all the media and in full.
- Safeguards corresponding to that of Article 352 should be incorporated in Article 356 to enable Parliament to review continuance in force of a proclamation.

Punchhi Commission (2008)

- The commission recommended imposition of localized emergency i.e. in only a district or a part of it. Such an imposition should not be of a duration exceeding three months.
- It also recommended suitable amendments in Article 356 to incorporate the guidelines of Supreme Court in S.R Bommai case (1994) with regards to invoking of the article.

APPOINTMENT OF CM IN HUNG ASSEMBLY

* In the context of government being formed by a non-majority party in Goa and Manipur, it has once again questioned the discretion of governor in calling a person to form a government.

* Article 164(1) provides for the appointment of chief minister by governor. Supreme court clarified that there is not qualification mentioned in article 164(1) and reading it with collective responsibility in 164(2), the only condition chief ministerial candidate need to
satisfy is that he/she should be commanding majority in the house.

* As for the appointment of Chief Minister, the Sarkaria Commission has recommended:

**The party or combination of parties with widest support in the Legislative Assembly should be called upon to form the Government.
** If there is a pre-poll alliance or coalition, it should be treated as one political party and if such coalition obtains a majority, the leader of such coalition shall be called by the Governor to form the Government.
** In case no party or pre-poll coalition has a clear majority, the Governor should select the CM in the order of preference indicated below:
a) The group of parties which had pre-poll alliance commanding the largest number.
b) The largest single party staking a claim to form the government with the support of others.
c) A post-electoral coalition with all partners joining the government.
d) A post-electoral alliance with some parties joining the government and the remaining supporting from outside.

APPOINTMENT & TRANSFERS OF GOVERNOR BY CENTRE

The qualifications of governor are not mentioned in constitution. Thus, ex-bureaucrats, retired  CJI, active politicians etc. have been appointed as governors. This leads to governor being committed to centre.

Thus, Recommendations of the Puncchi Commission on Role of Governor should be considered:
* It has given a set of criteria for the qualification of Governor to be included in Article 157:
a) The Governor should, in the opinion of the President, be an eminent person;
b) The Governor must be a person from outside the concerned State;
c) The Governor should be a detached person and not too intimately connected with the local politics of the State. Accordingly, the Governor must not have participated in active politics at the Centre or State or local level for at least a couple of years before his
appointment.

* The tenure of office of the Governor must be fixed, say for a period of 5 years;
* The phrase "during the pleasure of the President" may be deleted from Article 156 of the Constitution.
* In B.P. Singhal vs Union of India case, SC observed that power to remove Governor cannot be exercised in an arbitrary, capricious or unreasonable manner. This power should only be exercised in rare and exceptional circumstances for valid and compelling reasons.
* A provision may be made for the impeachment of the Governor by the State Legislature on the same lines as the impeachment of the President by the Parliament.
* Governors should not be eligible for any further appointment or office of profit under the Union or State Governments except a second term as Governor, or election as Vice-President or President of India.
* Also, after quitting or laying down his office, the Governor shall not return to active partisan politics.

In general, Governor needs to make sure that it has a constitutional obligation to preserve, protect and defend the constitution. They must not only be fair but also be seen to be fair