Consultation with chief minister and governor appointment

The president has recently made transfers/appointments of governors of some states (West Bengal, Tamil Nadu, Maharashtra, etc.). In West Bengal, CV Ananda Bose resigned, citing personal reasons, and RN Ravi (the then governor of Tamil Nadu) was appointed in his place. West Bengal chief minister Mamata Banerjee said she was shocked by this change and has further said that the Union home minister has recently informed her about this, but he did not consult her ​​before making this appointment as per the established convention. It is not known whether chief ministers of other states have similarly complained. Whatever it may be, the subject matter of this article is not whether Mamata Banerjee’s grievance is valid but what are the constitutional provisions or conventions in this regard?

According to Article 153 of the Constitution, each state shall have a governor, and the same person may act as governor of two or more states. According to Article 155, the president appoints the governor by a warrant under his hand and seal. According to Article 156, the governor holds office at the pleasure of the president. His term of office is five years. The person appointed to the post of governor must be a citizen of India and must be thirty-five years of age or above. The governor cannot be a member of either House of Parliament or of a state legislature and cannot hold any office of profit. According to Article 74 of the Constitution, the president acts on the aid and advice of the prime minister and the Union Cabinet, and therefore the governors are appointed by the Union government.

It is thus clear that there is no provision in the Constitution stipulating consultation with the chief minister of the state before appointing the governor. But there indeed is such a convention. In our parliamentary system conventions are very important. The Supreme Court has repeatedly held that constitutional conventions are as much a part of the Constitution as is the written text. It is also now widely established that constitutional morality means following both the text of the Constitution and the conventions. These conventions fill the gaps, if any, in the written Constitution and facilitate coordination between the legislature, executive, and judiciary. According to the convention, what is sought is consultation and not consensus. The purpose of these consultations is to ensure that relations between the two remain cordial and impartial and the constitutional machinery of the state continues to function efficiently. 

In 1983, Sarkaria Commission, appointed to study the Centre-state relations, had disagreed with the suggestion that one person from the list prepared by the state government should be selected as the Governor or that he should be appointed with the consent of the Chief Minister. Consultation means seeking the opinion of another person on the suitability of the person under consideration. Merely informing that a certain person is being appointed as the governor is not consultation. It is an empty rhetoric. The commission had expressed surprise as to why the process of effective consultation was not followed. The commission had suggested amending the Constitution to make effective consultation with the chief minister mandatory.

The Venkatachaliya Committee, appointed in 2000 to review the functioning of the Constitution, had made a similar recommendation. It also recommended that a committee comprising the prime minister, home Minister, Speaker of the Lok Sabha and the Chief Minister of the concerned state be constituted to appoint the Governor.

Justice M. M. Punchhi Commission (2010) had also recommended a provision in the Constitution for such consultation. 

The Constituent Assembly had discussed in detail the methods of appointment of the Governor. As Granville Austin has mentioned in his book “The Indian Constitution: The Cornerstone of a Nation”, in the early stages of the drafting process of the Constitution, it was proposed that the Governor would be directly elected by the people. But ultimately the suggestion was rejected. The committee felt that there would be a conflict between the elected Governor and the people’s representatives. Also, the appointment of the Governor not election, would increase administrative efficiency.

In March 2023, while replying to a question in the Rajya Sabha, the Minister of State for Home Affairs had stated that the government is of the view that the practice of consulting the chief minister of the state while appointing the governor can be followed as a matter of convention. For this, there is no need to amend Article 155 of the Constitution.

Granville Austin, in his book “Working a Democratic Constitution: A History of the Indian Experience”, has quoted the election manifestos of the Bharatiya Janata Party in 1980 and 1984 and has said that the party wanted to make it mandatory to consult the chief minister while appointing the governor. When the Bharatiya Janata Party was in the opposition, it always said, in the matter of Centre-state relations, that the present imbalance in Centre-state relations not only shrinks the independent existence of states and harms their just and rightful place in the federal system but also affects the financial ability and flexibility of the states in their administration. Therefore, in order to make Centre-state relations more harmonious and to give impetus to the concept of federalism, the BJP will immediately implement the recommendations of the Sarkaria Commission and will consult the state government while appointing the governor of the state and will take steps to prevent political misuse of the Raj Bhavan.

It is clear from this that using the Raj Bhavan for political purposes, especially to protect the interests of the ruling party at the Centre, is not a recent phenomenon, but it has been in vogue for years and all political parties are complicit in this sin. It would not be wrong to say that the BJP, while in power today, is behaving in an exactly opposite way from it’s assertions when it was in opposition. At the same time, the parties criticizing the BJP today should also remind themselves of how they behaved when they were in power in the past. What is needed is that all political parties should rise above party politics and work hand in hand to protect certain constitutional values, parliamentary conventions and the federal system. It is a moot question whether such consensus will emerge. 

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