Justice Nariman Calls for Constitutional Overhaul of Governor Appointments and Removals

New Delhi – In a forceful critique of prevailing constitutional practices, former Supreme Court Justice Rohinton Fali Nariman has advocated for a fundamental re-evaluation of the appointment and removal process for state Governors. He called for an end to the convention of appointing politicians to the gubernatorial office and proposed a robust mechanism for removing Governors who are censured by constitutional courts for overreach.

Speaking at a public event, Justice Nariman's remarks come at a time of heightened judicial scrutiny over the role of Governors, particularly in states governed by opposition parties. His proposals aim to insulate the constitutional office from political influence and reinforce its intended role as a neutral guardian of the Constitution at the state level.

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Ending Political Appointments: A Call to Uphold the Oath of Office

At the heart of Justice Nariman's argument is the inherent conflict of interest when an active politician, particularly one from the ruling party at the Centre, is appointed as Governor. He drew sharp attention to the Governor's oath of office, where they swear to "preserve, protect and defend the Constitution and the law" and devote themselves to the "service and well-being of the people."

“Please look at the Governor’s oath. What does he have to do? He has to abide by the Constitution and look after the people. In doing so, obviously, you cannot appoint a person who is going to violate his oath immediately. You cannot appoint a politician who belongs to your party, for example. So establish a healthy convention saying no such person can be appointed,” he stated.

This critique addresses a long-standing concern within India's federal structure. The Sarkaria Commission (1988) and the Punchhi Commission (2010) on Centre-State relations both recommended that Governors should be eminent persons from outside the state, detached from active politics, especially in the recent past. Justice Nariman’s call revitalizes this debate, framing it not just as a matter of good governance but as a prerequisite for upholding the constitutional oath. The appointment of partisan figures, he argues, pre-emptively compromises the neutrality expected of the office, creating an environment ripe for constitutional friction.

Accountability for Constitutional Transgressions: A Mechanism for Removal

A significant and novel proposal from the former Justice is the establishment of a clear process for removing Governors who have been judicially censured for violating constitutional norms. He highlighted instances where Governors have created legislative deadlocks by withholding assent to bills indefinitely or referring a large number of state bills to the President, effectively stalling the legislative process of a democratically elected government.

“Suppose a Governor blatantly violates the Constitution and, instead of assenting to ten bills, sends all ten bills to the President. The Court castigated such action, but despite this, we do not see any removals… Either the Court does it, or you establish a convention that once a constitutional court like a High Court or the Supreme Court castigates a Governor, the Centre must remove him,” Justice Nariman proposed.

This suggestion directly confronts the ambiguity surrounding the removal of a Governor. Under Article 156(1) of the Constitution, a Governor holds office "during the pleasure of the President," which, in practice, means at the discretion of the Union executive. This "hire and fire" power, as Justice Nariman described it, lacks transparency and accountability. In the landmark case of B.P. Singhal v. Union of India (2010) , the Supreme Court held that while the President can remove a Governor at any time without assigning cause, this power is not absolute and cannot be exercised in an arbitrary, capricious, or unreasonable manner. The judgment stated that a change in the ruling party at the Centre is not a valid ground for removal.

Despite this judicial precedent, Justice Nariman's proposal goes a step further by linking removal directly to judicial findings of constitutional impropriety. Such a convention would introduce a measure of objective accountability, shifting the basis for removal from political expediency to proven constitutional misconduct.

The Context: Rising Judicial Intervention in Gubernatorial Functions

Justice Nariman's commentary is particularly resonant given the recent spate of legal battles between state governments and their respective Governors. The Supreme Court has, in several cases involving states like Tamil Nadu, Punjab, Kerala, and West Bengal, made critical observations about the delays in granting assent to bills.

The Court has repeatedly clarified that a Governor does not possess discretionary power in assenting to legislation and cannot "sit over" bills indefinitely. In a recent order from April 2024, the apex court even suggested a 90-day timeframe for the President or Governor to decide on a bill, emphasizing that if assent is withheld, the bill must be returned with a message outlining the reasons. These judicial interventions underscore the growing need for clearer constitutional guardrails to prevent gubernatorial overreach.

Legal Implications and the Path Forward

The proposals put forth by Justice Nariman, if implemented, would have profound implications for India's constitutional and political landscape:

1. Strengthening Federalism: By depoliticizing the Governor's office, the proposals would foster a more harmonious relationship between the Centre and states, particularly those ruled by different political parties. It would reduce the perception of the Governor as an "agent of the Centre" and enhance the autonomy of state legislatures.

2. Enhancing Constitutional Morality: Instituting a convention to bar active politicians would elevate the office's stature and promote constitutional morality. It would ensure that the appointee's primary allegiance is to the Constitution, not a political party.

3. Creating Executive Accountability: A formal mechanism for removing a censured Governor would introduce a crucial layer of accountability. It would serve as a powerful deterrent against arbitrary actions and ensure that judicial pronouncements against a Governor have tangible consequences.

Implementing these changes would require significant political will. While some reforms, like barring politicians, could be established through a strong and consistently followed convention, others, such as empowering courts to order a Governor's removal, might necessitate a constitutional amendment. The debate sparked by Justice Nariman's incisive analysis calls upon the legal and political fraternity to seriously consider these reforms to preserve the delicate balance of power and uphold the foundational principles of India's federal democracy.