The Need for Reform in the Procedure of Governor Appointment: An Analysis of the Kashmir Situation

Prithviraj Khanna

Introduction.

A Governor in the Indian federal structure is the executive head of the entire State Administration. “He” is appointed by the President of India and serves at the pleasure of the President. While the executive powers of the governor are the same as that of the President, there are certain key differences between the two. One of these differences is the method of appointment. While the president is elected from an electoral college, the governor is directly appointed by the President. The Chief Minister of the State or the council of Ministers do not have a say in this appointment.

This method of appointment is important due to the federal structure of India, where there exist mainly two entities, the Center and the State. Both of these entities have well-distinguished areas of lawmaking and governance, specified in Schedule 7 of the Constitution. The budgetary structure is also set-up in a manner giving certain autonomy to the State in situations while keeping it within the umbrella of the Center.

This article will, therefore, situate the appointment of a Governor with their discretionary powers in this overall federal framework. The critique in the structure would be highlighted through the Constitutional amendment procedure followed in the Jammu and Kashmir situation in August 2019.

Discussion of the Appointment Method in the Constituent Assembly.

Initially, in 1947, it was suggested that a State-level version of the Presidential appointment system be adopted for the appointment of the Governor. This method was opposed by Sardar Vallabhai Patel and instead a direct election method was adopted. Two years later, the Constituent Assembly again debated on the method of appointment. However, at this time, the BR Ambedkar led Assembly was not in favor of an elected Executive Head.

Mainly four arguments were given against direct form of elections for the post of the Governor. Firstly, conflict of interest, as the Governor was supposed to be an impartial constitutional head, he could not be from a background of party politics. Secondly, instability was a risk foreseen if a Governor would be elected, for they would be able to intervene in everyday affairs of the legislature with the motive of pushing forward their political agendas. Also, the Governor could claim greater representative authority than the Chief Minister itself. Thirdly, at the time of debate, the Union of India was extremely fragile, with States meaning to break-away from the Union. A popularly elected Governor could increase the chances of secession of a State having such intentions. Lastly, the economy of India was not strong enough to undergo costs of additional elections for the post of the Governor.

With the above arguments, the method of election was transformed into an appointment-based structure by the Head of the Union’s Executive, the President. Even for this method, an alternative was provided. The Legislative of the State would recommend a list of 4 people, out of which the President may appoint the Governor. This, however, was rejected on the premise of Executive autonomy.

Amendment Procedure of Article 367.

Coming to the series of acts and decisions of the Parliament in early August 2019, an interesting course of action was adopted by the Parliament to remove the special status of Jammu and Kashmir. The text of Article 370 explicitly states that the President may only remove the special status on the advice of the Constituent Assembly of J&K. This Assembly was dissolved after the 1950s itself, which led to the debatable question of whether the effects of Article 370 are permanent or not.

The interpretation clause for the Constitution is specified under Article 367, which takes into consideration the General Clauses Act as well. It is this Article which was amended, by adding a clause to it. The amended article with its new sub-clause allowed the term “Constituent Assembly” to mean “Legislative Assembly”. Further, it allowed the term “Government” to mean the Governor acting on the advice of the Council of Ministers.

This Presidential Order is so crucial for the entire amendment process as it allowed the Parliament to remove Article 370 by simplifying its pre-existing removal procedure. By allowing the Government of the State of J&K to be interpreted as the Governor, the Central Government could nullify Article 370 with just the Governor’s assent.

This is exactly what was undertaken in August, where the Governor, who was a Central Government Appointee gave the assent, and based on this assent, the reform and restructuring of the State took place.

Need for Changing the Appointment System.

The amendment procedure in the J&K situation allows the Executive head of the State to make decisions affecting the lives of citizens who had no role at all in this decision making. Moreover, the premise of a breakdown in constitutional machinery, which is used for invoking Presidential rule, is not permanent. A bigger question of allowing such impactful Constitutional changes to be allowed in an interim period like this would perhaps be answered by the Supreme Court in October 2019.

While the above situation is an example of an extreme that can result with no checks and balances, it showcases dangerous possibilities. Such exercise of legislative and executive power by the Central Government prompts multiple questions. The most pertinent is what stops the Government from using the Governor like this for influencing State-level functioning for their political gains.

In the present electoral map of the Country, the only opposition against the main party in power is regional parties who function at a State level. Therefore, the role and appointment method of Governors must be reviewed to ensure stability between the Central and the State Governments. The main stakeholder which faces the detriment amidst such exercise of power is the people themselves, who end up suffering from the arbitrary acts of the Government.

Conclusion.

A suitable alternative to the current method of appointment of Governors was discussed in the Constituent Assembly itself, that is, indirect elections. State Assemblies should be allowed to elect their Governor, like that of the President. This method will ensure that the elected representatives of the people are the ones who would choose the executive head as well.

The opposition to this indirect form of elections at the time of the Constituent Assembly debates revolved mainly around the weak nature of the Indian Union, which had recently undergone partition. Since the values of federalism have been in operation from the last 70 years, this additional tool must be given to the States as well to strengthen their autonomy from the Center.

References:

  1. Constituent Assembly of India Debates (Proceedings), Volume IV, Tuesday, 15thJuly 1947.
  2. Oxford Handbook of the Indian Constitution, Chapter 18.
  3. Presidential Order C.O. 272 https://abcaus.in/wp-content/uploads/2019/08/article-370-scrapped.pdf

Prithviraj Khanna is a 3rd year BA.LL.B student at Jindal Global Law School.

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